CDirector of Public Prosecutions v Collins (a pseudonym)
[2021] VCC 1497
•6 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN COLLINS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2021 | |
DATE OF SENTENCE: | 6 September 2021 | |
CASE MAY BE CITED AS: | CDPP v Collins (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1497 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: 56 charges related to child pornography – course of conduct over a
period of years – early plea of guilty – no prior criminal history –
autism disorder and intellectual impairment -
Legislation Cited:
Cases Cited:
Sentence:5 years imprisonment. Non-parole period of 2 years. Sex Offenders
Registration – Life.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director | Ms K. Breckweg | Ms K Holdsworth |
| For the Accused | Mr J. Lowy | Mr L. Docherty |
HIS HONOUR:
1Benjamin COLLINS[1], you have pleaded to a Commonwealth indictment which involved 56 charges. Thirty-six of these charges related to using a carriage service to solicit child pornography material contrary to s474.19(1) of the Commonwealth Criminal Code. Eight charges related to using a carriage service to cause child pornography material to be transmitted to you under the same section. Seven charges relate to using a carriage service to transmit indecent communication to a person believed to be under 16 years of age under s474.24A(1) of the Code. One charge of using a carriage serviced to transmit child pornography material under s474.19(1) of the Code. One charge of precuring a child to engage in sexual activity outside Australia contrary to s272.14(1) of the Code. One charge of using a carriage service to transmit child abuse material under s474.22(1) of the Code. One charge of using a carriage service to solicit child abuse material contrary to s474.22(1) of the Code and one charge of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s474.22A(1) of the Code.
[1] A pseudonym.
2The charges span the period 15 December 2016 and proceed to 30 January 2020. These offences each carry a maximum sentence of 15 years imprisonment, except the seven charges of transmitting indecent communication to a person believed to be under 16 years of age, which carries a maximum sentence of seven years. The circumstances of your offending were outlined in a comprehensive summary of agreed facts for the plea. I will refer briefly to those matters for purposes of this sentence.
3In October 2019, internet chats between you and a 14-year-old living in Canada were discovered by the child's mother. That had occurred by way of applications like Snapchat and Kik. Screenshots were given to police authorities there and they ascertained that the other user involved in the communication was someone living in Swan Hill in Victoria. That person was you. You were 25 years of age at that time, although, this was already well into your offending which had begun when you were 22 years old in 2016.
4
Victoria Joint Anti-Child Exploitation Team members executed a warrant on
30 January 2020 at your home and examined a number of electronic devices located there. A phone contained child pornography material. During a field interview at that time, you said you were the sole user of the phone, that you had certain social media accounts. You disclosed your usernames for them. As to the girl Celia GIBSON,[2] you recall speaking to her and you told police she had been blackmailing you, that you had never intended to have a physical relationship with her. You chose to make no comment as to the sexualised language of the chat. As to sexualised chat with another user pretending to be under 16, you said you were role playing and you acknowledged that it was illegal to have sex with a person under the age of 18.
[2] A pseudonym.
5A more complete search of the phone revealed that it contained child abuse material. A number of applications were used by you, a large number of conversation threads with other persons. Images had been sent by others to you and not saved, some images sent by others to you had been saved which were child abuse and were purportedly sent by persons who were under the age of 16. There were four types of activities engaged in by you through the Kik app:
(1)
role playing of sexual activity with individuals between the ages of
14-29;
(2)sending images of your penis and/or explicit instructions on sexual activity to persons who identified themselves as being under 16 years of age;
(3)soliciting child pornography or child abuse material from users; and
(4)causing child pornography material to be transmitted to you.
6The prosecution summary gives a detailed outline of each charge which falls into these four activities. I need not relate or recite each in detail. I will append the summary to my sentence for future reference. The salient aspects are these. Your chat activity is recorded from 16 December 2016. In that chat with a user who said she was under 16, you request a photo of her boobs and asks, 'Can I see your pussy,' asking her to be naked and show you. Between December 2016 and October 2017, you chatted with a 15-year-old girl and you sought explicit photos from her.
7During December 2016, you chatted with a 13-year-old and solicited child pornography, sent her several images of adult pornography, dared her to masturbate, asked for images of her naked and sent a photo of your penis. Between December 2016 and January 2017, you chatted with a school-aged girl. You sent her a photo of your penis, requested explicit photos from her. In the same period, you chatted with a 15-year-old. You requested explicit photos and received them, sent an image of your penis, and requested to see her masturbate. The vast majority of chat activities comprised of these and similar exchanges.
8I will summarise other kinds of communication. These included to see other communicants in underwear, coached some to masturbate, role played daddy/daughter describing digital sex, asking others to strip, requesting lesbian videos, sharing videos and images particularly of young ones, asking for them to talk about sexual experiences, requesting to watch when someone shaves her vagina, requesting to watch lesbian sex, describing in explicit fashion how you would perform oral sex on the victims, encourage victim to engage in explicit sexual activity with her sister, sent images of your favourite porn star, the use of sex toys and oral sex with minors. Many of these conversations had reoccurring and similar themes and subjects, like asking to see their breasts, asking about their size, or asking to see them masturbate.
9
Between 24 January 2017 to 20 September 2019, you transmitted child pornography to 33 people on Kik application. Texts you sent constituted child pornography as they detailed persons under 18 engaging in sexual activity. Participants' role played for purposes of explicit role play chat. These included sexual penetration of a child or multiple children ranging from infants to
17-year-olds, sexual activity in the presence of a child, incest scenarios, sexual activity between children and adult males and impregnation of female children. Examples were given in the summary. These conversations included a conversation which, due to the change in legislative provisions in the period covered by the indictment, is split into two offences, Charges 10 and 54, and which, as a result, will bear concurrent sentences. In a number of conversations, the other person purports to inform you they are 12 or 13 years of age and at school.
10Between 18 October 2017 and 23 October 2017, after chatting to a young female user between the ages of 10 and 13, you chatted to an adult male in which you requested explicit pictures of the child naked, of specific body parts, wearing 'slutty clothes'. In many of the conversations you received intimate or explicit images from very young girls engaging in masturbation or sexual activity.
11
Between 21 September 2019 and 30 September 2019, you chatted with a
14-year-old Canadian child, as I have referred to above, requested her to masturbate, coaching her how to do it, requested explicit photos, sent videos of yourself masturbating, sent her adult pornography videos and images. When she told you her age, you said, 'I'm okay with that. I deal with girls a lot around that age.'
12Between 21 September 2019 and 29 January 2020, you transmitted child abuse material to seven people on the Kik app. The conversations constituted child abuse material, role playing with you, others assuming the role of a child for the purpose of explicit chat, including sexual penetration, assault of a child involving ages from infants to 17-year-old, sexual activity in the presence of a child, incest, sex between children and adult males, and impregnation of female children.
13An examination of your phone revealed 187 child abuse imagines stored on the phone. These images were classified according to the categorisation model for child exploitation material of the Australian National Victim Image Library into four categories. These categories range from no sexual activities but sexually suggestive or sexual in nature, including nudity and genital depiction at Category 1, to penetrative sexual activity between children or between children and adults, including sex toys and objects at Category 4. Your files were 173 in Category 1, three in Category 2, five in Category 3 and six in Category 4. Examples are given at paragraph 85 of the prosecution opening.
14Within messages sent by you, you referred numerous times to the fact that your conduct was illegal and often that you did not care. In relation to the Canadian girl involved, you told police that you were used by her. You were aware of her age, 14, and you engaged in sexualised talk because you had feelings for her and 'needed someone'. When asked about your reasons to engage in sex talk involving a three-year-old on another platform with another user, you said it was role play and that you would never engage in that behaviour in real life.
15
This type of offending is serious. The maximum penalty in relation to the offences, particularly on the majority of offences, is 15 years' imprisonment and this is a reflection of the gravity with which the legislators view this offending type. This view is reflective in term of community values and standards of conduct. This maxima is one of the many factors that are a yardstick in the sentencing synthesis to be undertaken. Such conduct causes dismay, consternation, concern, and repulsion by the community with good cause. It involves the corruption of young minds, the exploitation of the young for self-gratification, reduces innocent victims to objects of exploitation and encourages them into perverse and deviant behaviour at tender ages. It creates a deviant and abhorrent community of
like-minded persons who often trade in material of the violist and repugnant images and videos which have real victims, innocent children, and which creates and perpetrates a market which is international in nature and difficult to investigate and unmask.
16It procures sexual and social dysfunction, encourages selfish and prurient habits, and uses the anonymity, disconnectedness, and pervasiveness of social networks to corrupt for your own perverse pleasure. It is also clear from authority as it has developed this kind of offending, that general deterrence has primary consideration in dealing with such offending. The denunciation of such conduct, the protection of the community by the imposition of just punishment accompanies the occupy a primary consideration. The objective gravity of your offending is high because of the extensive period of time during which you engaged in such activities and the frequency and extensive nature of communications with many others as your correspondence.
17The nature and content of the material, the age of most of those with whom you engaged, the gravity of the sexual activity discussed and depicted, the number of items possessed, and the categories involved are all relevant matters. Whereas in cases like this general deterrence is a primary sentencing consideration, an offender's personal mitigatory factors such as prior good character, age and prospects of rehabilitation must be given less weight than might otherwise be given. And specific deterrence is also important. The fact that most of your possessed material is in the first category, is not a mitigatory factor. The fact that you did not pay to access child pornography or were involved in the distribution or sale does not mitigate the offending. Your offending is multifaceted within a substantial offending course of conduct. It was neither spontaneous nor a one-off or limited engagement. Rather, it was carried out routinely over a period of years.
18All the charges except one (Charge 56) are rolled up charges, reflecting the many incidences of offending, each capable of constituting separate offences. Your conduct was undertaken in full knowledge of its illegality. As to soliciting child pornography or child abuse material, the offending covers two lengthy period between December 2016 and December 2017 and then January 2019 to November 2019. You solicited then, from 36 individual users, the majority of which were between 10 and 17 years of age. You sent an image of your penis to at least 10 users. On eight occasions you caused the transmission of child pornography to you from December 2016 to May 2017 and October 2017 to January 2019 from female children aged between 13 and 17. You received 14 pornographic images from eight users, featuring girls' sexual organs and body images. On seven separate occasions you have sent indecent communications to users, believed to be children under 16, intermittently between January 2017 to July 2019.
19These communications were invariably sexually explicit and included images of your penis. You transmitted child pornography to 33 people on one application, including pornographic texts, role playing depicting highly depraved sexual material involving children. As to precuring of a child to engage in sexual activity outside Australia, the provisions covering such conduct were introduced in 2010 to protect children from online predators and to recognise the international flavour of such offending. You told that particular victim that she should come to Australia to live with you. This was after sending her images and videos, including of you masturbating yourself.
20The possession of child abuse material where most of the images were in the first category, is not innocuous and does not diminish the objective gravity of the offending or in any way mitigate offending. Further, 11 images in Category 3 and 4 includes images of a female about 14 years of age surrounded by seven adult penises with her face covered with what appears to be ejaculate and an image of a male child aged between eight and 10 being orally penetrated by an adult penis.
21A victim impact statement was tendered from the victim in Charge 15 named Celia GIBSON. Here statement reflects the emotional and psychological impact on a young girl of the offending. She writes of her anger and sadness, the impact on her studies, interference with sleep and eating disorder. She became more isolated as the offending caused conflict in her home and this disconnection had a significant impact. Apart from the presumption that child victims of cybersex suffer harm, it is clear in the courts' sad experience that such offending causes long-lasting harm, both physical and psychological, which impacts most aspects of current and future life. I take this impact into account.
22I take your plea into account. It was entered at the first reasonable opportunity. The plea has a significant utilitarian benefit of having avoided the cost of a criminal trial and the impact on witnesses and bringing finality to the proceedings. It is a plea that is entered at a time when the pandemic has had a great effect on the delivery of justice in our state and, therefore, its value is real and important. Is it so also because it is made at a time when the expectation of an outcome which involves imprisonment, in the face of the existing health crisis, increases the burden of imprisonment and I take that into consideration.
23In this context, it should be acknowledged that reclusion in these COVID-19 times impact correctional facilities by way of quarantine requirements, lockdowns which are long, restrictive conditions throughout the correctional services which effect visits to prisoners, access to educational, vocational and therapeutic programs, work programs, and other activities and services, as well as they impact the prisoners themselves beyond these restrictions by being detained at a time when, in a close environment of a prison, the risk of infection and illness is substantially increased and real as we have coincidentally seen in gaols in New South Wales at this very moment. I take all these matters into account.
24I accept that the plea itself is some evidence of remorse. This is often a difficult sentiment and state of mind that is difficult to assess. It is perhaps even more difficult in your case for reasons which I will explain in a moment, but which concern your state of mental health. However, your comments to treating professionals, to those making assessments, reflect an appropriate level of remorse which I accept is accompanying your plea. Your plea of guilty will reduce your sentence.
25I take into account your personal circumstances. You committed these offences when aged between 22 and 25 years of age. You are now 27 years of age. Although you are not a youthful offender, neither now nor at the time of the offending, your age is a relevant matter, particularly as you are a person without prior criminal history, and this would be your first time in reclusion. This factor, although, as I have stated before, carries less weight in sentencing for offending of this nature, is still relevant in the synthesis of factors to be considered and relevant in the consideration which rehabilitation and the weight it should accorded in that synthesis.
26Prospects for rehabilitation are another aspect which are to accorded less weight than they would ordinarily be given because of the nature of the offending, but they remain relevant and, in fact, the Commonwealth Crimes Act by s16A(2AAA) provides that a court sentencing an offender for Commonwealth child sex crimes must take into account the objective of rehabilitating the person in considering whether it is appropriate when making an order to impose any conditions about treatment options and appropriate in determining the length of any sentence and non-parole period to include sufficient time for the person to undertake a rehabilitation program. These provisions are not contrary to the need for appropriate punishment or to diminish the primacy of general deterrence, but to protect the community in the long-term by ensuring that offenders are reclaimed and rehabilitated by attendance upon treatment when they are released.
27You are one of four children to your parents. You have a twin sister and an older and one younger sister. You have never married and have not had a serious relationship or had children. You grew up in Swan Hill and there completed your secondary education to year 12 for VCAL. Your family has had a strong religious emphasis and you have recently returned to this aspect in order to address your offending and its causes. You had an integration aid at school for some unspecified learning difficulties and after leaving school you worked for a tech company building computers. You then worked at Woolworths for about three years, followed by two years with a district funeral home. You then began to be in receipt of a disability support pension. As a result of the publicity this case received, you were let go from the funerals job of work.
28Your home life was stable and unburdened by violence or other issues. Carla Lechner, an experienced clinical psychologist, wrote a report for the court dated October 2020 and an addendum report dated July 2021. Mr Lechner gave evidence before me. She wrote in her report that you present with a range of symptoms and behaviours then suggestive of autism spectrum disorder that affects your cognitive, social, and emotional functioning. She recommended a formal assessment by a specialist. She opined that your offending appears to, 'Be a function of psychosocial immaturity, lack of sexual experience and a tendency to engage in repetitive behaviours without thought for the potential consequences.' The disorder had not been formally diagnosed or treated at the time of her first report.
29At assessment, there was no evidence of psychotic processes. Your social and emotional immaturity limits your ability to engage reflective or consequential thinking. You are disconnected from your emotional world and assigned your offending to addiction or a demon. You have a limited social network but have never had a girlfriend, meeting people through a church group. You were not depressed or mentally unwell. You told Ms Lechner your offending was motivated by loneliness. You were looking for anyone, irrespective of age, as emotion took over. You explained a lot of the content of your conversations, requests, suggestions, and subject threads as things you had seen and copied from chats others had conducted. You found these arousing, liking the sense of dominance, masturbating to ejaculation. The materials saved by you as arousing to you, engaging routinely in a daily ritual in these contacts over the internet applications.
30You told Ms Lechner your faith in God had helped you to deal with this addiction, a habit which you now regret. You had limited insight and empathy with the plight of the victims. Your lack of empathy may be due to the disorder and social immaturity. Ms Lechner noted there is no specific tool for assessing risk of recidivism for online offenders, but research suggests that factors relevant to risk are similar to those of contact sexual offenders. Poor interpersonal competence and mental health issues are two of these markers for increased risk. Sexual deviance is another, and in your case, is unclear. Although the content of many conversations in which you participated and took an active leading role appear to suggest such sexual deviance in the sexual interest in children, Ms Lechner does not suggest this is, in neither her report nor in her evidence, as a demonstrable finding.
31
Themes linked to sexual arousal and the conversations undertaken need explanation for such a deviance to be confirmed. On the basis of this,
Ms Lechner's assessment is that you are a low/moderate risk of recidivism. Any form of sexual deviance would tip you towards low to moderate range. Ms Lechner confirmed in her evidence that repetitive behaviours often are the hallmark of ASD. Here it is coupled with psychosocial immaturity, lack of confidence and experience in interacting with age-appropriate females. Counselling would assist.
32You told Ms Lechner that NDIS funding application would be made through your treating psychologist Ms McDonald. Ms Lechner also spoke to your mother, who confirmed the importance of your routines during your days, that you had few social connections and do not express a lot of emotion. She was shocked and dismayed by your offending behaviour as being utterly out of character and attested to your remorse.
33
'An ASD diagnosis would assist in tailoring intervention,' Ms Lechner stated. She added that incarceration would be a difficult task to manage, particularly matters of conflict and confrontation and change of routine. An addendum report was tendered by way of answering some specific questions which had been posited to her. She stated your overall IQ was in the borderline range. She recited some of the findings which she found in a lengthy psychological assessment report by
Ms Torgovnikova dated July 2021 which I have also read and received as an exhibit. The diagnosis of ASD was confirmed by the report of the psychologist she reviewed with accompanying intellectual impairment. In answering the specific question as to the causal link to the commission of the offence, Ms Lechner focused on this aspect undermining your understanding of the seriousness of your actions while not being causally linked. I agree with this response.
34
As I said in the plea, in my view, such a question is a matter for the court to determine in its judgement and an expert like Ms Lechner should not be asked to express such an opinion, though clearly, her assessment, analysis and experience would facilitate the court's task. In the light of this disability, Ms Lechner's opinion is that you would struggle in a custodial setting which she expanded upon in realistic terms. I accept this conclusion. Yours is a permanent disability of
long-standing and likely to cause a high level of psychological distress, a decline in mood state and increased anxiety. Appropriate social and sexual interactions and relationships, normal human interactions are at the core of any future counselling or treatment.
35Ms Lechner's evidence confirmed much of what was in her report. She gave evidence that yours is a milder case of ASD but coupled with intellectual impairment with a lesser capacity to link cause and effect and think consequentially, lacking 'a theory of mind' and inability to understand the desires, intensions, beliefs of another person which often appears as lack of empathy, inability to take another's perspective. You struggle to explain why your actions are wrong. Ms Lechner's evidence was hampered by not having been provided with the depositional material of the chats in which you engaged, which she acknowledged, and so was unable to comment on the way some dialogues proceeded and what they may reveal further about your state of capacity of state of understanding at the time of the offence.
36I accept, having read them, that you know, not only of their illegality of the conduct, but also its seriousness and your contumacious insistent and routine engagement with such practices as a matter of daily routine, without any real consideration for any other factors beyond your sexual gratification. There remains a question mark as to the deviance aspect of your repetitive offending in relation to your puncheon for younger persons with which to interact.
37When queried in cross-examination about this aspect, her opinion was that it was a sliding decline into that sort of preference and behaviour reflective of psychosexual immaturity but unable to express an opinion as to whether it was a genuine interest. The linking of dominance to a sense of control and power which you may not have experienced in another field in life does not add to the resolution or advances the position as to this query.
38Elizabeth McDonald, a mental health social worker, psychotherapist, and autism behavioural technician, provided the court with a report dated 19 March 2021 and a second on 29 July 2021. In the March report, Ms McDonald writes of your attendance every three weeks. The topic discussed are outlined and are important, including sexuality and sexual urges management, the importance of information and communication in consensual relationships. She notes the rigidity of your routines and significant defects in life skills which limit your ability to regulate emotions amongst other affects, causing you to become fixated on people, object, and games, as well as a chronic language disorder. The content of this report is important to understand the architecture of your autism.
39She reported about the 28 sessions which you had with her. She confirms you have turned to your family's Christian faith for guidance and solace. This is a new aspect in your life, despite your family's history in such religiosity. She has carried out her counselling work with you as reflective work about acceptable beliefs and values in the community. This, she says, has been very challenging for you. She says you have a new level of insight; you appear to understand that your conduct can have a significant and costly impact on others, particularly the children involved. Ms McDonald writes that it is apparent to her you lacked this awareness at the time of your sexualised chats. She has discussed the impact of imprisonment and focused on future work and educational opportunities. She emphasised in her candid and refreshing report that your ongoing rehabilitation can bear good results for the future.
40
The length psychological report that was compiled by provisional psychologist Olga Torgovnikova and Dr Catherine Hart, a clinical psychologist and supervisor, was also tendered to the court. It was by referral of Mr McDonald for cognitive and functional assessment and recommendations as to your development of functional skills. It is dated May 2021. I have carefully read and noted the developmental and educational history, the occupational history, the social history, behavioural observations and mental health examinations and their results. Autism Spectrum Disorder was confirmed with an accompanying intellectual impairment. Social communication requires substantial support, congruent with the assessment of
Ms McDonald.
41The reporting writer suggests that NDIS funding for a range of interventions from speech pathology through to behavioural support clinicians and support workers is required. I note that the defence also provided a chronology of appointments which you attended via Ms McDonald. I have again read your record of interview which, by careful reading, gives insight into the kind of thinking and mental capacity. I also received a number of references in this matter on your behalf. A learning diversity leader at St Mary MacKillop College, Sally Op't Hoog wrote a letter dated 3 December 2020. She was your primary school teacher and followed your progress into secondary school. She writes of your progress and difficulties socially and academically and at a maturity level many years behind your peers. Your maturity often clouded your judgement, lacking in understanding of cause and effect. She writes that, 'This gullible young man has never been in a relationship and has lived in a fantasy world.' She writes of your remorse.
42Mr Alfred Turner also wrote a reference in which he reflects on the out of character nature of your offending. William Kemp wrote a reference, a math teacher. He speaks of your filtered naive outlook on life and 'your failure to pick up on social ques when speaking with fevered intensity.' Jann Barkman wrote in October 2020, is a psychologist and the father of some school friends of yours. You expressed remorse to him. He is confident in your rehabilitation. Pastor Colin Mitchell for the Swan Hill Christian Centre wrote in October 2020 of his knowledge of your immature emotional and intellectual development which 'have severely stunted' your understanding of appropriate conduct between the tenders. Pastor Mitchell has offered pastoral care to you. Neil Sheriff wrote in September 2020. He is a co-worker at the funeral home. He writes that, in a working relationship, your disability is evident, needing the same instruction every day, lacking the capacity to anticipate outcomes. He is confident of your not again reoffending.
43Caroline Anderson wrote in October 2020 from your church youth group. She speaks of your participation in a leadership team, voluntary roles and commitment to improvement and reformation. Nathan Richardson wrote in October 2020 and he speaks of your remorse. He attends your church and was a youth leader there. He speaks of your lack of maturity, both emotional and intellectual, your desire to not commit similar offences in the future. Mark and Raelene O'Halloran are the directors and your employers at the Swan Hill District Funeral Services. They wrote about your work ethic, your sensitive approach in dealing with issues in a very sensitive environment which exceeded their expectations. They were conscious of your disability and they write that your offending was totally out of character and you were stood down with regret.
44Michael Adamson wrote in February 2021 that he is the senior minister at Swan Hill Church of Christ from 2002 and knows you and your family. He suggests that the offending is so out of character that you would not have been fully aware of the implications or inappropriateness of your conduct, age-appropriate understanding of your actions, operating, as you do, at a level of maturity far younger than your age would suggest. Finally, your parents wrote in December 2020 and understandably impassioned letter of support, describing your history and their shock at your conduct. They speak of your remorse and the actions which have been taken to remedy this predicament. The extra curial consequences and public opprobrium which has followed has been an added punishment.
45I refer to these impressive references in some detail because, in the context of taking into account all relevant consideration in this sentencing, it is impossible to ignore or downplay the knowledge, experience and perceptions of a large body of persons which have dealt and know you. The recurring themes in these letters are those which go to confirm your personal circumstances surrounding your mental health and capacity. Although I accept and concur with the argument that this condition is not causative in the Verdins sense - that is, not causally linked to the offending - nevertheless, I conclude that it is inherently linked in considering what your true moral culpability is in relation to this conduct and in this sense, I am persuaded that your moral culpability is reduced by a disorder which renders you less able to understand and appreciate fully the nature of the crime committed and its impact.
46It acts as a blind spot in your understanding and appreciation. People on the autism spectrum need education as to sexual rules which are often unspoken and riddled with nuance and to some extent, your moral culpability, even over this long period of offending, is in my view, conditioned and qualified by your disorder. It is not to be either ignored or relegated to a quirk of character. Your mental capacity has contributed to the commission of these offences, without assigning to it an exaggerated role but acknowledging its presence in shaping your behaviour. People on the autism spectrum are notoriously law-abiding rule followers and if they do not know a rule, they do not follow it.
47In my view, you knew of the illicit nature of your communications, but you had a limited understanding of the fullness of its inappropriateness. This matter also goes to the type and length of sentence to be imposed because incarceration, indeed, registration, which flow from it may have a long-term impact beyond the aim of proportionate punishment and response to your criminality, as it may tend to further stigmatise and isolate you, further limiting your future access to rehabilitative efforts and hopes. I am very conscious of this aspect in imposing a sentence upon you.
48It was sought by defence counsel to be argued that delay is a matter I should give weight to. You were arrested in late January 2020. At that committal, you went to the plea of guilty on 1 September 2020. The matter came on before the court in April 2021 when it could not proceed due to outstanding reports which were delayed by the effects of the pandemic. In my view, the delay here neither excessive nor unusual. It is true that the pandemic has brought about delays, but they have not had, in this case, the kind of impact which would require amelioration of sentence because of the beyond acknowledging and taking into account that you have had this hanging over your head for some time. Indeed, the delay has provided the opportunity for significant efforts and have meant little unfairness upon you when one looks at the material.
49I am conscious of the principle of totality in imposing sentence which, in this case, requires to be accompanied by proportionality and parsimony in the sense that I neither intend to impose a crushing sentence nor a large measure of accumulation required to acknowledge the discreet nature of each charge and charge type. In reference to some charges, 10 and 54 in particular, I will impose total concurrency as they stem from one ongoing conversation which straddles legislative changes, as I have explained above.
50The prosecution submitted that any sentence which does not involve immediate imprisonment would be wholly outside the range of sentencing available. I agree with this proposition. Being a Commonwealth sentence, I must have regard to the matters set out in s16A of the Crimes Act and I do so. I must also have regard to sentences imposed by intermediate appellate courts in other states and territories for consistency. There are no appellate sentences directly referable or factually comparable, the prosecution submitted, to the nature and type of offending in the present case. A table of cases was provided to the court to give some guidance as to the principles and sentence structure. I have reviewed these cases. Where factually there are some common features, such cases can do no more than exemplify yardsticks which illustrate but not define the range of sentences available and the approach taken in the instinctive sentences.
51You have pleaded guilty to one Schedule 1 offence, namely procure a child to engage in sexual activity outside Australia (Charge 53) and to 54 Schedule 2 offences. As a result, you will be required to be the subject and comply with Sex Offenders Registration Act [2004] reporting obligations for life. Your consent to ancillary orders of forfeiture in relation to your phone pursuant to s232D of the Code are noted and I will make such an order.
52In striking a sentence in this case, I intend adopting the approach taken and approved in the case of Martin v The Queen [2019] NSWCCA 197 which was referred to in the table of cases provided by the learned prosecutor. The appropriate term in respect of each count is being determined before considering the questions of accumulation and/or concurrency, taking into account the principle of totality. In considering the extent of accumulation warranted to derive a sentence that reflects the totality of the criminality involved in all the offences, the actual and potential impact of the offending against multiple victims, the multiplicity of discreet acts and the extended period of the offending must all be recognised. Part accumulation of all sentences would result in an overall sentence with a crushing effect on the offender's motivation towards rehabilitation. The overall term of the sentence had been determined with a view to avoid such an effect.
53Concurrent sentences will be imposed for groups of offences and there will be partial cumulation as between these groups in order to give effect to the totality principle. This structure and the non-parole period set is based on the rationale that supervision of the offender on parole over a longer than usual length of time will ensure ongoing psychological intervention and assist in the reintegration into the community after serving the non-parole period and so promote your prospects of rehabilitation and mitigate it against the risk of reoffending. The non-parole period has been determined with these competing factors in mind.
54Would you please stand, Mr COLLINS.
·On the 36 charges of use carriage service to solicit child pornography material, on each charge you are convicted and sentence to two years' imprisonment, concurrent with each other in this group of offences.
·On the eight charges of use carriage service to cause child pornography material to be transmitted to yourself, on each charge you are convicted and sentences to two years' imprisonment, concurrent with each other in this group of offences.
·On the seven charges of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age, on each you are convicted and sentenced to one year imprisonment, concurrent with each other in this group of offences.
·On Charge 10 of using a carriage service to transmit child pornography material and on Charge 54 of using a carriage service to transmit child abuse material, you are convicted and sentenced to two years imprisonment, concurrent each on each other.
·On Charge 53 of procuring a child to engage in sexual activity outside of Australia, you are convicted and sentenced to two years imprisonment.
·On Charge 55 of using a carriage service to solicit child abuse material, you are convicted and sentenced to two years imprisonment.
·On Charge 56 of possessing and controlling child abuse material obtained or accessed using a carriage service, you are convicted and sentenced to two years imprisonment.
55I order that the two years of the 36 charges in the first group be the base sentence upon which six months from each of the other six groups will be cumulated, making a total affective sentence of 60 months/five years' imprisonment.
56I order that you serve 24 months before being eligible for parole.
57HIS HONOUR: Madam Prosecutor, are there any other ancillary orders to be made?
58MS BRECKWEG: No, I don't believe there are, Your Honour.
59HIS HONOUR: Have I made clear, pursuant to that authority, the way in which I've gone about sentencing on this indictment?
60MS BRECKWEG: Yes, you have, absolutely. I can understand exactly how you've done it, Your Honour, and I don't see any difficulty with the calculations.
61HIS HONOUR: Good, thank you. Mr Lowy, is it clear - - -
62MR LOWY: Yes, it's all clear, Your Honour.
63HIS HONOUR: - - - as to how I've gone about it?
64MR LOWY: Absolutely.
65HIS HONOUR: All right, thank you. I understand that there maybe someone in the body of the court who's a family member.
66MR LOWY: Yes.
67HIS HONOUR: Just give me a moment.
68MR LOWY: Mr COLLINS's mother.
69HIS HONOUR: Mr COLLINS will have to sign the sex offender registration. I've already signed it. I would advise him to read it. Perhaps you can go through it with him because it's a significant number of obligations that will attach.
70MR LOWY: Do you want me to do that now, Your Honour?
71HIS HONOUR: No, can you do that later on?
72MR LOWY: Yes, of course. Yes, yes.
73HIS HONOUR: Yes, and what I was thinking of, Mr Lowy, was that I will stand down after his mother has had an opportunity to say hello and say goodbye to him.
74MR LOWY: Thank you.
75HIS HONOUR: Unfortunately, she's not going to be able to touch him, but she can approach the dock and speak to him just for a moment please, gentlemen. Yes, and then you can get him to sign that document. If she wishes to. Yes, thank you. Sine die, Mr Schornikow. Thank you, Ms Breckweg, thank you, Mr Lowy.
76MR LOWY: Thank you, Your Honour.
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