CDirector of Public Prosecutions v Dosen
[2022] VCC 1757
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00593
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| O'CEAN DOSEN |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2022 | |
DATE OF SENTENCE: | 11 October 2022 | |
CASE MAY BE CITED AS: | CDPP v DOSEN | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1757 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Possess or control child abuse material obtained or accessed using a carriage service – Plea of guilty – Worboyes - Verdins - Reasonable prospects of rehabilitation - Youth.
Legislation Cited: s474.22A Commonwealth Criminal Code 1995 (Cth); ss6AAA Sentencing Act 1991 (Vic); ss16A(2), 20(1B) Crimes Act 1914 (Cth).
Cases Cited:Boulton v The Queen [2014] VSCA 342; Bradshaw v The Queen [2017] VSCA 273; Cluett v The Queen [2019] WASCA 111; DPP (Cth) v D'Alessandro [2010] VSCA 60; DPP (Cth) v Garside [2016] VSCA 74; DPP (Cth) v Zarb [2014] VSCA 347; R v Edwards [2019] QCA 15; R v Gent [2005] NSWCCA 370; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.
Sentence: 12-month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | E. McDonald | Commonwealth Director of Public Prosecutions |
| For the Accused | K. Powell | Victoria Legal Aid |
HER HONOUR:
1O’Cean Dosen, you have pleaded guilty to one charge of possessing or controlling child abuse material obtained or accessed using a carriage service.
Circumstances of the offending
2The full circumstances of your offending are set out in the prosecution opening for plea marked as Exhibit A on the plea.
3On 30 July 2021, the Australian Federal Police Child Protection Triage Unit received seven reports from the National Centre for Missing and Exploited Children ("NCMEC") relating to the upload of child abuse material to the Snapchat platform.
4The same address was reported as having uploaded the child abuse material on all seven occasions. Further investigations were conducted, and the Telstra IP address was interrogated, leading to the execution of a Commonwealth search warrant at your address on 8 December 2021.
5You were located inside the premises along with your mother, grandfather, and your brother. At that time, a review and analysis of your seized electronic storage devices was conducted by a Digital Forensic Analyst. Child abuse material was located on the Samsung tablet belonging to you.
6Later, on 18 March 2022, a further analysis and categorisation of the files located on your seized electronic storage devices was completed. Located within your black Samsung tablet were 16 files of child abuse material. Located within your black Lenovo laptop was one video file of child abuse material.
7A report was produced displaying the files located in your possession. This report details the type and file pathway of each file and the dates and times some of these files were uploaded to your electronic storage device. It also indicates that you had been accessing child abuse material since July 2020.
8A number of representative files were selected, and the images are outlined at paragraph [9] of the prosecution opening. Generally, they include category 1 Child Exploitation Material ("CEM") of real pre-pubescent children, aged 13 years of age or younger in sexualised poses, wearing see through underpants or lingerie, a very short miniskirt or only wearing underpants and an image focused on the genital region of the child. They also include Category 2, other illegal content of children aged between 13 to 18, consisting of a video file depicting a 3D animated female toddler with no clothing, performing oral sex on an adult male; an animated image of a naked female toddler being sexually penetrated by adult males and an animated image of a naked child, covered in silver coloured paint.
9A formal interview was conducted with you at your address and some of your answers are outlined at paragraph [10] of the prosecution opening. During the interview you admitted that the material was yours, that you never sent or shared the material but had them for ‘masturbation’ and that the children depicted in the material looked ‘pretty young’.
Gravity of the offending
10The maximum penalty for the charge of possess or control child abuse material is 15 years’ imprisonment which reflects how inherently serious this offence is. As your Counsel, Ms Powell accepted, this is serious offending and ordinarily persons who plead guilty to such matters can expect a term of imprisonment to be imposed. Deterrence is a paramount consideration. The Courts recognise that those who possess child pornography help fuel the demand for it, and that deterrence is required to protect children from sexual abuse and exploitation.[1] I take into account the relevant principles as outlined at paragraph [4] of the prosecution submissions.
[1] Cluett v The Queen [2019] WASCA 111.
11In assessing the gravity of this offending, I have had regard to the factors outlined in other cases, including DPP (Cth) v Garside[2], R v Gent[3] and DPP (Cth) v D'Alessandro[4] . I note that your offending was not for the purpose of sale or profit or further distribution. While this does not mitigate the offending, the absence of certain aggravating features is relevant to my assessment of the gravity of your offending.
[2] DPP (Cth) v Garside [2016] VSCA 74.
[3] R v Gent [2005] NSWCCA 370.
[4] DPP (Cth) v D'Alessandro [2010] VSCA 60.
12In addition, I take into account that your offending is charged as occurring on a single date, being 8 December 2021. While I note that there is a context to your offending and the opening suggests you have been accessing child abuse material since July 2020, as discussed at the plea hearing, you will not be sentenced for this alleged conduct or for alleged offending that has not been charged. The prosecution provided the Court with a table of comparative cases. In the case of DPP(Cth) v Zarb[5] the offending was described as ‘sustained’ but this of course correlated with the charge period of offending which there extended over a 15-month period.
[5] DPP (Cth) v Zarb [2014] VSCA 347.
13In assessing the gravity of your offending, I also take into account the number of images in your possession, which compared to many other cases, is relatively limited. I have also had regard to the nature and content of the material and its classification. This observation is not intended to minimise the objective gravity of your offending. Rather, I would have regarded it as an aggravating feature had your offending involved a greater number of images, or had they fallen within the more depraved and abusive higher categories.
14The images depicted children involved in sexual activities with adults were in the nature of animated image files and a video file. While real children were not involved in the making of this material, I accept that such material is not harmless. I also accept that this should not be viewed as a mitigating factor, nor was it proffered as one by your Counsel. As the Court stated in R v Edwards[6] at [61]:
The capacity of child exploitation material, even that which does not depict real children, to affect the community goes beyond the tendency to normalise exploitative sexual activity involving children or even to stimulate potential participants in it. In my view, it serves to fuel the demand for such material, whether or not it involves real children. Further, such material has the capacity to groom not only the recipients of it, but those who may be affected by recipients of it.
[6] R v Edwards [2019] QCA 15.
15On your behalf it was submitted that your offending occurred in the context of your declining mental health and extreme drug use. In turn, this lowered your inhibitions and contributed to your poor decision making. You told forensic psychologist Carla Ferrari that during the offending period you were experiencing poor mental health and feeling directionless. You were spending significant periods of time on your own in your room, using substances daily at that point – namely MDMA, acid and Xanax – and turning to pornography as a form of distraction and sexual gratification. You first began viewing cartoon pornography and about a month prior to the offending you progressed to human pornography. You admitted to knowing it was wrong and described it as an escape from reality. Overall, Ms Ferrari considers that the combined effect of your fluctuating symptoms of post-traumatic stress disorder ("PTSD"), your attention deficit hyperactivity disorder ("ADHD"), your persistent depressive disorder ("PDD") and your excessive drug use at the time increased your impulsivity, risk taking behaviour, heightened sexual desire and arousal and behavioural disinhibition.
16While this, of itself, does not mitigate the offending, or moderate your moral culpability, I accept, on the evidence, that your offending occurred within this context.
17As noted, the Court was provided with a table of comparative cases. I have carefully considered these cases and I found them useful for their statement and application of general principles. As discussed at the plea hearing however, there are also significant differences in the nature of the offending and the personal circumstances of the offenders. On my reading, most if not all of those cases concerned mature offenders, varying from late forties to their sixties. By contrast, you were 19 years of age at the time of your offending.
Relevant considerations under s16A(2)
18Section 16A(2) of the Crimes Act 1914 (Cth) sets out a non-exhaustive list of factors the court must take into account where relevant. I have already referred to the nature and circumstances of the offences and my assessment as to their gravity.
Plea of guilty and remorse
19I accept that you have entered a plea of guilty at the first available opportunity. This has significant utilitarian value and is indicative of your remorse, willingness to facilitate the course of justice and your acceptance of responsibility. I also accept that the utilitarian benefit of your plea is heightened in circumstances where the ordinary operation of the courts has been interrupted by the Covid-19 pandemic.[7] I also take into account the substantial admissions you made to the police and your cooperation at the time. I accept that you are genuinely remorseful for your offending, as indicated by your plea and in additional your representations to Ms Ferrari and your mother.
[7] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
20Your personal history was canvassed by your counsel and also by Ms Ferrari in her report.
21You are now 20 years of age. You live with your mother, brother, and maternal grandfather. Your mother informs the Court in her letter that you all moved into your grandfather’s home a few years ago, after the sudden passing of your grandmother. She states this took a toll on you as you were very close to your grandmother.
22Your mother and father remain in a relationship but currently live apart. You see your father once a week and describe a good relationship. You appear to have a close relationship with your mother, who was in Court supporting you and who now clearly knows about the circumstances of your offending. Your father recently stopped working due to a physical injury. Your mother is currently the full-time carer of her father, that is your grandfather.
23Growing up you were provided for and nurtured by your family. However, as a child you were exposed to harm in the form of sexual abuse perpetrated by a neighbour. The detail of that abuse is provided for in the report of Ms Ferrari and I will not repeat it here. The matter was reported to the police years after but ultimately not prosecuted. I accept your account of what happened to you, and I accept that it has had a significant effect on you, as detailed by Ms Ferrari.
24You commenced using drugs at the age of 13. You started using cannabis, which escalated to daily use. At the age of around 14 you started using Xanax daily and also admit to regularly using MDMA and acid, particularly during your offending. You told Ms Ferrari that substances have helped you block your emotions and thoughts relating to your own traumatic history and other life stressors.
25Your schooling was disrupted, and you experienced some difficulties learning and in maintaining attention. Instead of repeating Year 10 you decided to leave. This history is consistent with the diagnosis of ADHD made by Ms Ferrari recently. You’ve not obtained any other qualifications since leaving school and have had only some limited employment experience. You worked for a mechanic a few years ago and currently you’re enrolled with the employment agency Work Skills Australia. You see a case manager on a fortnightly basis and you’re keen and motivated to find work. You had hoped to work in the security industry in the future, but you recognise that this may not be viable in light of this matter. You are now exploring options in hospitality.
26Since your offending you have ceased using substances and you have also not accessed or used pornography. You have no prior criminal history and no subsequent matters. This case has been hanging over your head now for a period of time, causing you uncertainty and stress as to your future. It has also allowed you to demonstrate that you are capable of making meaningful changes to how you live your life.
Mental health
27You suffer from a number of mental health conditions, as outlined in Ms Ferrari’s report. As already noted, she diagnoses you with ADHD, PPD with current major depressive episode and cannabis and stimulant use disorders, in partial remission. You also present with symptoms of PTSD (in response to childhood sexual abuse) but don’t currently meet the subthreshold due to not meeting the hyperarousal criterion. She notes however that symptoms of PTSD fluctuate in intensity and frequency and its possible that you will in the future meet all criteria for this disorder if your symptoms are triggered
28Ms Ferrari canvasses the way in which these conditions affect your behaviours, mood, and emotions. She considers that over the years you have been self-medicating to manage and suppress the severity of your various symptoms. She identifies self-regulation issues as being key symptoms of PDD, ADHD and PTSD. She considers that these mood disturbances, together with exacerbations of your trauma, have further impacted your decision making and judgment, which can also increase negative emotions and decrease prosocial responses. Substance abuse also has obviously operated to impair your cognitive ability and decision-making.
29I accept your counsel’s submissions that some of the Verdins[8] principles are enlivened in your case, in particular limbs two and five. In relation to limb six, it’s not entirely clear to me on the evidence that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
[8] R v Verdins [2007] VSCA 102.
30I accept however that you do suffer from the mental health conditions already referred to and that you are more vulnerable because of these conditions, along with your young age and lack of any prior custodial experience or entrenched patterns of offending. The prison environment can be a very volatile one that can trigger impulsive and disproportionate responses.
Youth
31You were 19 years of age at the time of the offending and are now 20 years of age. It is well recognised that young offenders, being immature, are therefore ‘more prone to ill-considered or rash decisions’, and ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. As Ms Ferrari states in her report at paragraph [98], there is a significant difference in the maturity of young adults in their late adolescence and early adulthood compared to adult offenders. These factors, when combined with the value of rehabilitating young offenders, often justify a heavily moderated sentence.
32A youthful offender is not to be sent to prison if such a disposition can be avoided, as it would more likely impair, rather than improve, the offender's prospects of rehabilitation. In the circumstances of your case, I have no doubt that imprisonment would likely impede rather than progress your ongoing rehabilitation. As Ms Ferrari observes at paragraph [100] of her report, ‘it seems fair to opine that imprisonment is likely to have a negative effect on [your] development and future behavioural outcomes through loss of positive social structures and educational and vocational access, and exposure to negative peers at [your] impressionable developmental stage.’
Prospects of rehabilitation
33I consider that you present with reasonably good prospects of rehabilitation. You have pleaded guilty to this offence and have accepted responsibility and demonstrated victim empathy and insight into your offending.
34You have taken steps towards your rehabilitation, in the nature of ceasing drug use since your arrest and not utilising pornography. You continue to have ongoing support from your family and prosocial friends. You attended upon your general practitioner recently for a health care plan. You have an appointment with a psychologist scheduled for this week. You are motivated to work and are engaged with an employment agency.
35While your offending conduct is obviously concerning and serious, as I’ve already noted, I accept that your arrest and this entire process has served as a ‘wake up call' for you and has been salutary. I also accept and take into account the opinions of Ms Ferrari that you represent a relatively low risk of reoffending, in the nature of sexual recidivism and of any child pornography recidivism. The percentile ranges you scored on the Child Pornography Offender Risk Took ("CPORT") indicate that out of 100 individuals in a combined normative sample of child abuse material offenders, 82% would have a higher rating than you. In assessing your prospects of rehabilitation, I also take into account that you have no prior criminal history and no subsequent offending.
Sentencing principles
36General deterrence is the paramount factor in sentencing for offences of this nature because of the paramount public interest in promoting the protection of children. However, in your case, given your youth, I consider that it must give way to the promotion of your rehabilitation as the primary purpose of sentencing. The sentencing principles of specific deterrence, denunciation and protection of the community are also relevant matters that must be afforded weight. I regard the protection of the community to be best achieved by your rehabilitation.
37On your behalf your Counsel submitted that a community corrections order ("CCO") was appropriate and could meet all the relevant sentencing considerations. The prosecution submit that a term of imprisonment, pursuant to s20(1B) is appropriate and concede that exceptional circumstances exist in the matter thus permitting your immediate release from any such sentence.
38In determining the sentence to be imposed in your case I have also have regard, as I am required, to the principles of proportionality and parsimony. I am required to impose a sentence that is of a severity appropriate in all the circumstances of the offence. I consider that a CCO provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address your particular circumstances and causes of the offending and can minimise the risk of re-offending by promoting your rehabilitation.[9]
[9] Boulton v The Queen [2014] VSCA 342; see also Bradshaw v The Queen [2017] VSCA 273 at [49].
39As a result of the material before me and the submissions of the parties I had you assessed for a CCO. I received an assessment report and a Forensicare report. You were assessed as suitable for an order.
Sentence
40Taking into account all relevant factors and sentencing considerations I consider that a CCO is the just and appropriate sentence in your case. On the one charge before the Court, you are convicted and sentenced as follows: 12-month CCO with the following additional conditions:
(a) Supervision
(b) 80 hours community work; and I offset 40 hours of work against treatment.
(c) Treatment and rehabilitation for drugs.
(d) Treatment and rehabilitation for mental health.
(e) Treatment and rehabilitation – programs to reduce reoffending.
41In the circumstances, I’m not required to make a s6AAA declaration and I therefore will not.
42I confirm there are no ancillary orders.
43The offence you are charged with is pursuant to s474.22A of the Commonwealth Criminal Code 1995 (Cth) and is therefore a Class 2 offence under Sex Offenders Registration Act 2004 (Vic). What this means is that sex offender registration is mandatory and does not involve an exercise of discretion by the Court. I therefore make the order and I make it for a period of eight years, which is the mandatory minimum reporting period. You will be given a document which sets out your obligations under the legislation.
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