CDirector of Public Prosecutions v Dickerson

[2023] VCC 1054

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-01950

DIRECTOR OF PUBLIC PROSECUTIONS
(CTH)

v

PAUL DICKERSON

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2023 21 June 2023
DATE OF SENTENCE:	21 June 2023
CASE MAY BE CITED AS:	CDPP v Dickerson
MEDIUM NEUTRAL CITATION:	[2023] VCC 1054

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      
Catchwords:  Use carriage service to access child pornography
Legislation Cited:  Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Worboyes v The Queen (2021) VSCA 169

R v Verdins [2007] VSCA 102

Sentence:  18 month Community Corrections Order
  150 hours unpaid community work
  Supervision
  Mental health treatment and rehabilitation
  Programs to reduce the risk of reoffending
Sex Offenders Registration Act – 8 years

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms C. Hill	Office of Public Prosecutions
For the Accused	Mr J. Kelly	Adrian Paull Criminal Lawyers

HER HONOUR:

1Paul Dickerson, you have pleaded guilty to one charge of using a carriage service to access child pornography material, between 22 June 2018 and 10 August 2019.  The maximum penalty for this offence is 15 years' imprisonment.

2At the relevant time, you were aged between 38 and 39 years.  The circumstances of your offending have been provided in the summary of prosecution opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

3On 22 June 2018, you created a Dropbox account after signing up to the service on a free subscription.  The IP address associated with your account is listed as your home address.  You were sent Dropbox links to child pornography material from someone you had met online on the ‘Tumblr’ app.  In order to open the links and view that material, you created the account.  You told police you were on ‘Tumblr’ to share pictures, to look at other people's pages and to chat to people.  You downloaded the Dropbox app onto your mobile phone and accessed the child pornography material.  On 10 August 2019, further access to the material was prevented, as your account was disabled by Dropbox.

4A summary of the child pornography, being 12 images and two videos, is outlined in the prosecution opening.  I have not viewed the material, as both parties agree that the description provided by the prosecution is sufficient.  The images include low-level child pornography where there is no sexual activity, as well as explicit material that demonstrates a high degree of depravity.  In particular, one image and both videos relate to the anal penetration of a male child by the use of a sex toy or by an adult male.

5Child pornography is a global problem.  It is far from being a victimless crime.  Children have been exploited for the purpose of producing these images.  The possession of child pornography material creates a market for the continued corruption and exploitation of children.  The material was not possessed by you for sale or further distribution but for your personal use.  You did not pay for or profit from the material.

6The parties agree that while the volume of the material is an indicator of the seriousness of the offence, the primary focus is the type of material and degree of depravity.  Quantity is the secondary focus.  Although you are only to be dealt with for accessing a limited amount of material, you have pleaded guilty to having access to that material over a period of almost 14 months.

7On 28 October 2020, police executed a search warrant at your home.  No items were seized, but you agreed to participate in a record of interview.  You fully cooperated with police and indicated from the outset that you had accessed child pornography using your carriage service.  The admissions that you made in your record of interview have been relied on by the prosecution as part of the case to establish your guilt of the offence charged.

8You said that you received the material from your ‘Tumblr’ contact and that your Dropbox account was only used for child pornography.  No one else had access to your phone or Dropbox account.  You did not name, edit the names of or create files of the videos and images.  I accept that your offending is largely unsophisticated, as there was no attempt to encrypt or conceal the files.

9When asked about the content of the material that you accessed, you said:

·        'There were older people doing stuff to young boys … like anal and all sorts of things. … It was really not good';

·        'I'm not normally into … underage children.  It was more like a … a curiosity sort of thing.  That's all it was';

·        You admit to viewing the material a few times.

10You were aware that viewing and storage of child pornography was illegal.  You admit that you did the wrong thing.  At the conclusion of your interview, you were released by the police.

11On 29 September 2021, police received relevant information from Dropbox Inc.  The material was examined on 25 November 2021.  The account registered in your name was found to contain child abuse material.

12On 21 February 2022, you were arrested and charged with offending and released on an undertaking of bail with strict conditions.  You have not served any time in custody.

13After discussions between the parties, your matter resolved to a plea of guilty to a single charge on 24 October 2022.  It is agreed that your plea has been entered at the earliest opportunity and was heard on 31 May 2023, the first County Court listing.  Your plea is consistent with the admissions made in your record of interview.

14You are entitled to receive a substantial benefit for your guilty plea.  It has a highly significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.  The utilitarian benefit of your plea is to be enhanced by the fact that Worboyes[1] considerations are engaged.  This results in a more pronounced amelioration of sentence that at another time.

[1] Worboyes v The Queen (2021) VSCA 169.

15Your plea of guilty demonstrates an acceptance of responsibility for your offending.  Your counsel submits that it is also consistent with remorse.  The prosecution does not dispute this. I accept this submission.

16I turn now to your personal circumstances.  You were born in February 1980 and are now 43 years of age.  You are not in a relationship and do not have any children.  You live on your own in Horsham.  You are homosexual and report that you have not been 'lucky in love'.

17You grew up in Horsham and are the older of two children.  You have a close relationship with your sister.  Your early life was dominated by the sudden death of your father when you were aged six years.  Your mother remarried and you did not have a close relationship with your stepfather.  You have two half-siblings.  Your mother is now deceased.

18You are the sole carer of your 88-year-old grandmother, who lives on her own in a unit in Horsham.  You assist her to attend medical appointments, pay her bills and general living requirements.  You are currently in receipt of a disability support pension and also receive a carer's allowance from Centrelink.

19You have disclosed your offending to a few of your family members and friends.  You maintain their support and are most fortunate in that regard.

20When you were aged between three to four years, you were sexually abused by an older teenage cousin.  You believe that these early experiences resulted in your homosexual orientation.

21You attended primary and secondary school in Horsham and completed Year 12.  You were required to repeat Grade 2, possibly as a result of the upheaval associated with your father's death.  You describe yourself as a fairly good student although you were bullied.

22You completed two years of a Bachelor of Social Work at the University of Ballarat before taking a break to look after your sister.  Your mother died in 2002.  You began to drink and smoke regularly for some time.  You did not resume your study.

23You have a strong work history, undertaking various forms of employment from the age of 18 years with the Salvation Army and Uniting Care.  You moved to Melbourne in around 2006 and worked in transitional housing.  You engaged with many clients, some of whom committed suicide.  From 2017, you returned to Horsham and worked full-time as a peer worker.  You resigned when charged with this offence.

24In 2007, you underwent a psychotic breakdown and were diagnosed with schizophrenia.  You have relapsed several times, most recently in 2021 and 2023.  These later relapses were induced by stress.  You have been under the care of a doctor at Victoria Clinic for a number of years.  You are generally well maintained on prescribed medication and able to function effectively in the community.

25You are of previous good character and have no prior or subsequent criminal history.  While it is conceded that limited weight is put on good character for offending of this type, you have not reoffended since August 2019.

26The delay in these proceedings is a highly relevant consideration in your favour.  You became aware of the police investigation into your misconduct more than two and a half years ago.  There was then a delay of almost 16 months between the time you were interviewed and when you were charged with your offending.  The risk of being charged and subsequent criminal proceedings have been hanging over your head for some time.  I accept that you have suffered anxiety and distress during this period, and I take this into account.

27Delay is also relevant in a different way.  You have used the time between offending to reorganise your life and substantially effect your rehabilitation.  You have not reoffended for almost four years.

28The conditions of your bail included that you were not permitted to access the Internet or any online social media applications except as required for banking, daily essentials, employment and/or seeking legal advice.  You were to notify the informant of your possession or ownership of any internet-enabled device and present such device and passwords if required.  You had to surrender your working with children card.  You have complied with the strict conditions.

29These conditions may have assisted in your rehabilitation, yet they also amount to an imposition on your liberty and are a form of punishment already occasioned.

30At the request of your solicitor, you participated in a psychological assessment with Ms Carla Lechner on 4 May 2023.  In a report prepared for court dated 9 May 2023, Ms Lechner provided a detailed account of your personal history and your mental health background.  You acknowledged your offending conduct.  You stated that you used to access gay pornography via ‘Tumblr’ and was sent the material in question by another party.  You are deeply ashamed of your actions.  You no longer access pornography, and your libido has diminished since being charged.

31You confirmed that you have not sought to have access to any similar material since 2019.  You admitted, 'I've made a dreadful mistake, but I've been totally transparent'.

32Although not formally assessed, you impressed as being of average intelligence.  You have no current issues with drug or alcohol abuse.  You have a
well-established diagnosis of schizophrenia and have been under the care of the same psychiatrist for many years.  You are well maintained on prescribed medication, being an antidepressant and antipsychotic medication, and you have recently commenced on lithium as a mood stabiliser, which has improved your sense of well-being.  You have unresolved post-trauma symptoms relating to your father's death and the death of numerous people while you managed rooming houses several years ago.

33Ms Lechner described that you have been exposed to a number of significant losses, including both parents, as well as traumatic experiences.  In her view, you tend to cope reasonably well although you have found it hard to establish and maintain close intimate relationships for fear of loss.

34In Ms Lechner's opinion:

·        You impressed as capable of reflective and consequential thinking;

·        You presented as quite insightful and with a good understanding of the harmful effect of child abuse material;

·        You are currently reporting a severe level of psychological distress, mostly reactive to these charges and your pending court hearing, as well as unresolved symptoms of PTSD;

·        You are open to the idea of trauma-informed psychological intervention;

·        You could not explain why you viewed the material more than once but denied feeling aroused by it;

·        You deny any sexual attraction to children.

35Ms Lechner states that you have demonstrated symptoms of PTSD resulting from seeing dead bodies (including your father's body) and your experience of psychosis.  Your diagnosis of schizophrenia and your PTSD symptoms mean that a period of imprisonment would be more burdensome on you than on a person who does not manage your conditions.  There is also a serious risk that a period of imprisonment would have a significant adverse effect on your mental health given that you manage significant and longstanding obesity partially related to your antipsychotic medication, sleep apnoea and symptoms related to these conditions.[2]

[2] R v Verdins [2007] VSCA 102, limbs 5 and 6.

36A letter to the court dated 19 October 2021 from your GP confirms that you have been suffering from schizophrenia, psychosis, depression and anxiety for the last 14 years.  You have been very compliant with your pharmacological, psychological and psychiatric treatment.

37General deterrence is conceded to be the primary sentencing consideration for offences involving child abuse material given the prevalence of the offending, the ease of access to such material on the Internet and the difficulties of detection.

38Further, an offender's personal mitigatory factors, such as lack of prior convictions, should generally be given less weight.  Denunciation, punishment and protection of the community are also important sentencing considerations.

39Ms Lechner outlines that there is currently no specific measure to provide an actuarially or dynamically based protocol for assessing the risk of recidivism of online offenders.  When assessing your risk of reoffending, Ms Lechner concludes that you do not exhibit sexual deviance or poor interpersonal competence, although you do suffer a degree of social anxiety.  You do not demonstrate symptoms of psychopathy or substance abuse.  You do not have a criminal history.  On the basis of these factors, it is her view that your risk of re-engaging in such behaviour is low.  In other words, she opines that you are a low risk of reoffending.  Your counsel submits that her opinion should be accepted.

40Despite Ms Lechner's opinion regarding your risk of reoffending, the prosecution position is that your prospects of rehabilitation with respect to child sex offences are guarded. Further, that sexually specific treatment should be ordered as a condition of either the corrections order or a recognisance release order, based on your limited insight into what was the reason for your offending.  In the record of interview, you said that you viewed the material because you were curious.  To Ms Lechner, you said, 'I don't know what I was thinking'.  Your offending only ceased when your Dropbox account was disabled.

41When considering the issue of specific deterrence, your counsel has submitted that it is not a highly relevant consideration.  The prosecution does not agree with this submission, due to your limited insight into what caused your offending over a period of 14 months.  Your access to child pornography was not an isolated incident.  The prosecution noted that your interest or curiosity in child pornography material was not satisfied upon your first access to it and you viewed it numerous times over that period.

42While the principle of specific deterrence is relevant, given the duration of your offending, I accept that its relevance is limited, taking into account your lack of prior history and subsequent offending.  While your compliance with bail limited your access to the Internet and your subsequent opportunity to reoffend, these conditions were not imposed until February 2022.

43The reality is that almost four years have passed since your offending conduct ceased.  In all the circumstances, I consider that your prospects of rehabilitation are very good.

44When considering the appropriate penalty, your counsel has submitted that a Community Correction Order (CCO) would be appropriate and satisfy all relevant sentencing requirements in your case.

45The prosecution does not dispute your counsel's submission and agrees that a CCO may be appropriate.  Alternatively, a custodial disposition in which you are released forthwith on a recognisance release order is submitted to be an alternative realistic sentencing option.

46You have been interviewed by a Corrections officer and found to be a low risk of general reoffending.  While the report suggests that you showed a lower level of insight, you did express shame and accepted responsibility for your misconduct.

47As part of the corrections order, you would be required to participate in programs as directed.  The CCO assessment outlined that given the nature if your offending, you will be required to undergo assessment by Forensic Intervention Service to determine your risk of sexual reoffending.  To facilitate this, an order of at least 18 months is recommended.

48You were also assessed by the Mental Health and Advice Response Service (MHARS).  You have experienced stress, distress and social embarrassment for your offending and the subsequent court proceedings.

49You presented with appropriate insight and judgment into your mental health and presented as relatively stable in your mental state.  Given your complex mental health needs, ongoing treatment for your psychiatric and psychological issues as well as treatment from your GP is recommended as part of the order to provide continuity of care.

50You have discomfort in your back and require a medical clearance to determine appropriate worksites.  It is not anticipated that this injury will prohibit you from performing unpaid community work.  You are prepared to do so.  You indicate that you are willing to comply with a CCO and have been found suitable.

51From a purely psychological perspective, you would benefit from involvement with treatment as outlined in the CCO assessment.  Ms Lechner opined that an immediate term of imprisonment would be most detrimental to your mental health and may trigger an episode of psychosis.

52After considering all the material, I am satisfied that the need for general deterrence and the objective gravity of the offending can adequately be dealt with by the imposition of a CCO as the appropriate disposition.  I make this order notwithstanding that a term of imprisonment would ordinarily be warranted for offending of this kind.

53I have carefully considered the maximum penalty and current sentencing practices as well as your personal circumstances and other sentencing considerations. You will be placed on a CCO with conviction for a period of 18 months.  This will allow the appropriate treatment to be provided, if required, to reduce your risk of reoffending.

54You are convicted and sentenced to a CCO for 18 months, with the following conditions:

(a)   Report in person to the Horsham CCS within 2 working days to sign up for the order;

(b)   Perform 150 hours of unpaid community work;

(c)   Comply with Supervision of CCS;

(d)   Participate in mental health treatment and rehabilitation ;

(e)   Participate in programs to reduce the risk of reoffending;

(f)    50 hours treatment to be credited as hours of unpaid community work.

55The charge on the indictment is an offence that requires mandatory registration under the Sex Offenders Registration Act.  The parties agree that you are required to comply with reporting obligations for a period of eight years, and I make that order.

56Mr Dickerson, I will now stand down. My associate will send you through a copy of the corrections order and will also provide a copy to your counsel and the prosecution.  Once you have had a discussion with Mr Kelly about whether you are prepared to comply with the order, I will resume.

57OFFENDER:  Look, I have spoken to Jack, and I am very much consenting to this.  I will do whatever I need to do, that is possible, to do the right thing.

58HER HONOUR:  All right, thank you very much. There are some standard conditions that I need you to read as well as the specific conditions that I have outlined.  Mr Dickerson, I will just leave the Bench, and as soon as you are ready, if you would let me know, and I will come straight back in, thanks.

59OFFENDER:  Yep.

60HER HONOUR:  Thank you.

61(Short adjournment.)

62HER HONOUR:  Yes, Mr Kelly.

63MR KELLY:  Yes, Your Honour.  I have sent a copy of the signed order to Your Honour's chambers. 

64HER HONOUR:  All right, thank you.  And is your client prepared to comply with the order?

65MR KELLY:  Yes, Your Honour.

66HER HONOUR:  I just need to sign the order if we have got it here. We will provide orders to both parties, and then you are both excused.

67MS HILL:  Your Honour, if I may, just one final question.

68HER HONOUR:  Yes.

69MS HILL:  If you could make the 6AAA statement?

70HER HONOUR:  I do not need to for a corrections order if it is under two years.

71MS HILL:  Yes, yes.

72HER HONOUR:  So I have not made one.

73MS HILL:  Yes, all right, that is fine, thank you.

74HER HONOUR:  Thank you. 

75MS HILL:  It is not required.

76HER HONOUR:  Yes.

77MS HILL:  It is in your discretion as to whether you give one or not.

78HER HONOUR:  Yes.  I was not proposing to make one, thank you.

79MS HILL:  Yes, thank you, Your Honour.

80HER HONOUR:  I think the reality is that Mr Dickerson would be aware, given the reasons, that a term of imprisonment would have been the likely outcome if the matter had not proceeded as a plea. Thank you both very much.  Mr Dickerson, I will now leave the Bench.

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