CDirector of Public Prosecutions v Drennan
[2022] VCC 1327
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00175
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Nathan Drennan |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2022 | |
DATE OF SENTENCE: | 12 August 2022 | |
CASE MAY BE CITED AS: | CDPP v Drennan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1327 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — use carriage service to solicit child abuse material — use carriage service to transmit child abuse material — possess or control child abuse material obtained or accessed using a carriage service — plea of guilty — early plea — COVID-19 — remorse — youthful offender — depression — anxiety — adjustment disorder — immaturity — moral culpability — risk of reoffending — general deterrence — denunciation — just punishment — prospects of rehabilitation — imprisonment — recognisance release order — sex offender registration
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Edwards [2019] QCA 15; Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800
Sentence: Total effective sentence of two years and six months to be released on recognisance of $1000 after serving nine months
Section 6AAA declaration: total effective sentence of four years’ imprisonment with non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A Ambesi | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms K Mildenhall (for plea) Ms C Ottaway (for sentence) | Victoria Legal Aid |
HER HONOUR:
1Nathan Drennan, you have pleaded guilty to three charges: a charge of using a carriage service to solicit child abuse material, a charge of using a carriage service to transmit child abuse material, and a charge of possessing child abuse material. All the charges carry a maximum penalty of 15 years’ imprisonment.
2A ‘Summary of Prosecution Opening’ which set out in full the facts and circumstances of your offending was tendered at your plea.
3In brief, the circumstances of your offending are as follows. You came to the attention of Australian Federal Police following a report that indicated you were dealing in child abuse material via the ‘Discord’ application. Discord is an online chat application that allows users to communicate with each other via video calls, voice chat and text. Users can also upload images and videos to Discord ‘servers’ or groups and can communicate either via group messages or private messages with other users.
4On 13 October 2021, the Joint Anti Child Exploitation Team (‘JACET’) executed a search warrant at your residence in Pakenham. During the execution of the search warrant, investigators seized a Samsung Galaxy mobile phone and an Acer laptop belonging to you. The Samsung phone contained a SIM card for a telecommunications service subscribed in your name.
5A preliminary examination of the phone identified the presence of child abuse material stored within the phone. As a result, you were arrested and conveyed to the Pakenham police station, where you participated in a record of interview.
6In your record of interview, you admitted that you had both possessed and shared child abuse material. You told police you had first encountered child abuse material on the dark web between 2016 and 2018. You said that you had deleted most of the child abuse material stored on your phone within the last 60 days. You admitted a sexual interest in girls aged between 12 and 18 but denied having an interest in material depicting coercive sexual practices and material involving infants and toddlers. You admitted viewing material that involved acts of sexual penetration between children and adults and children and animals.
7You told police the last time you had looked at child abuse material was weeks ago. You told police you went through cycles of accessing and downloading child abuse material and then trying to stop and deleting the material before starting to access and download the material again.
8You voluntarily provided investigators with the password to your devices and email accounts. Your devices were examined by a digital forensic examiner. Your phone contained a total of 226 files containing child abuse material, comprising 159 images and 67 videos. Images located on your phone depicted the following:
(a) stylised images such as Japanese anime of children engaging in sexual activity with adults or other children;
(b) prepubescent and peripubescent female children in sexualised poses including poses with adult males;
(c) prepubescent female children with a focus on their genital area;
(d) prepubescent female children masturbating;
(e) prepubescent female children performing oral sex on prepubescent male children and adult males;
(f) males holding their penises next to the faces of prepubescent and peripubescent female children including with the children’s faces covered by what appears to be ejaculate; and
(g) penile–vaginal penetration of prepubescent and peripubescent female children by adult males.
9The videos located on the Samsung phone included:
(a) Stylised videos such as Japanese hentai/manga/anime of children including:
(i)A video of a prepubescent female child lying on the sand at the beach being approached by an adult male who then places a cloth over the child’s mouth and renders her unconscious after a struggle. The man then performs oral sex on the child before penetrating her vagina with his penis and masturbating and ejaculating on the child’s stomach.
(ii)Prepubescent and peripubescent female children being vaginally penetrated by adult males.
(iii)Prepubescent female children masturbating.
(b) Prepubescent female children removing their clothing and posing sexually for the camera and masturbating, including a child using a vibrator.
(c) A naked prepubescent female child performing oral sex on an adult male.
(d) Prepubescent and peripubescent children being vaginally or anally penetrated by adult males with their penises.
(e) An adult male rubbing the vagina of a prepubescent female child and digitally penetrating her vagina before getting the child to perform oral sex on him.
(f) ‘Clips’ depicting children and infants involved in sexual activity, including children sexually penetrating other children and adults engaged in oral sex with children.
(g) A close-up of a prepubescent penis penetrating a prepubescent vagina.
(h) A close-up of an adult penis penetrating a prepubescent vagina.
(i) A naked prepubescent female child performing oral sex on an animal, possibly a canine.
(j) A canine licking a prepubescent child’s vagina while the child performs oral sex on an adult male, where the child is restrained with ties and is blindfolded.
(k) Prepubescent female children being vaginally or anally penetrated by a canine.
(l) A male aged in his mid-teens being anally penetrated by a canine while masturbating.
10The child abuse material described above has been categorised as comprising 24 category 1 files, that is material depicting real children perceived to be under 13 involved in sex acts or witnessing sex acts, and there were seven images and 16 videos; and 203 category 2 files, that is other illegal content, including content where children are under 18 years but over 13 years and are involved in acts of sexual penetration. This category also includes anime or cartoons where children under 18 are depicted engaging in sexual conduct or in sexualised poses. Category 2 also includes material of children under 18 being subjected to acts which may not be overtly sexual but are degrading and/or sadistic, and there were 152 images and 51 videos in that category. Of the category 2 images, 138 were animated or cartoon images. Of the category 2 videos, 14 were animated or cartoon videos. All other category 2 files and all category 1 files depicted a real child.
11A review of the data acquired from your Gmail email account located seven files containing child abuse material, being one image and six videos. The image stored in the Gmail account depicted a peripubescent female child standing in a bathroom with her shirt pulled up to expose her naked vagina. This was categorised as category 1 child abuse material. The six videos stored in the Gmail account included:
(a) A prepubescent female child performing oral sex on an adult male. The adult male then anally penetrates the child with his penis and the child inserts a vibrator into her vagina.
(b) Three videos depicting prepubescent or peripubescent female children being anally or vaginally penetrated by adult males.
(c) Two videos of peripubescent female children being vaginally or anally penetrated by canines.
12The child abuse material described above has been categorised as comprising four category 1 files and two category 2 files.
13The total number of child abuse material files possessed or controlled by you on 13 October 2021 was 233, and that’s charge 3, possession of child abuse material.
14I turn now to charges 1 and 2, which are the solicitation and transmission charges. Your phone had the ‘Telegram’ application installed on it. Telegram is a freeware, cross-platform, cloud-based instant messaging system. It also allows for end-to-end encrypted video calls, voice calls and file sharing.
15A review of the phone’s data disclosed a chat between you and another user on 25 May 2021 in which you initiated a trade of child abuse material and exchanged child abuse material with the other user. Of the material transmitted during the exchange, one 43-second video sent by you depicting a female child penetrated by an adult male was recovered by investigators.
16Following the exchange, multiple files were exchanged between you and the other user during the Telegram chat. Of the files that were recovered, six videos were sent by you to the other user. Those files constituted child abuse material. Those videos depicted:
(a) A prepubescent female child lifting her upper-body clothing in front of a video camera to display her breast area and fondling her breast area.
(b) A prepubescent female child lying on top of a naked adult male and performing oral sex on him. There is a discussion between the adult and the child about the taste of the adult’s penis. The child then lies beside the adult male, who masturbates while the child also holds his penis. The adult male then places his penis in the child’s mouth and holds her by the hair before the video ends.
(c) A naked prepubescent female child in a bathroom. The child faces away from the camera and bends over to expose her naked anal and genital area.
(d) Two naked prepubescent female children with a naked female adult. The adult inserts sex toys into the vaginas of both the female children, removing and inserting them into both children. The adult then inserts the other end of one of the sex toys into her own vagina while the other end is still inside one of the children.
(e) A prepubescent or peripubescent female child lying on top of another female while that female performs oral sex on and masturbates the child.
(f) A prepubescent female child removing her clothing in front of a video camera. The child removes her underwear and exposes her naked vagina. It appears as though the child is in front of a computer screen and is following directions being given to her. She then masturbates and the video camera is focused on her genital area as she does this.
17There was a further exchange between you and the other user in which the other user expressed an interest in child abuse material depicting rape. You said you used to have rape material, but you had lost a lot of stuff. You said of the child abuse material, which you had but which had not sent, that most of it was ‘zoophilia’, presumably a reference to material depicting bestiality.
18A number of chats were acquired from one of your email accounts, this time using the Discord chat application. Of the chats acquired, two were identified as involving you transmitting text-based child abuse material to other users.
19The first chat involved a conversation between you and an unknown user on 1 August 2021. During that conversation, you transmitted messages which included text-based child abuse material. In one message, you described participating in coercive sexual acts including oral and anal sex with girls younger than 16 and as young as 12.
20In a second chat with another user which took place on 23, 27 and 28 August 2021, you again described participating in coercive sexual acts with children as young as 10 years old.
21Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take into account a number of different matters if they are relevant and known to me in arriving at your sentence. I take into account the following matters which were raised at your plea hearing.
22I begin with your plea of guilty, contrition and cooperation with authorities. You pleaded guilty at a committal mention on 10 February 2022. This is a plea of guilty at the earliest opportunity. Your plea of guilty has significant utilitarian value, especially in the context of the ongoing delays in the administration of justice in this State caused by the COVID-19 pandemic. I take your early plea of guilty into account and I give it the full mitigatory weight which attaches to it, as discussed in the case of Worboyes v The Queen.[1] I also accept that your plea of guilty, in conjunction with your early and full admissions to police, is indicative of remorse on your part.
[1] [2021] VSCA 169.
23I turn now to your personal circumstances and antecedents. You were born in June 1997. You were 23 and 24 years old at the time of the offending and you are now 25 years old. You are a youthful offender. You have no criminal history.
24You were born in Brisbane. You have a younger brother. Your parents separated when you were seven years old. You have two half-siblings from your mother’s second marriage. You mainly lived with your mother after your parents’ separation, although you have also lived with your father for periods of time.
25You do not have a close relationship with either of your parents. You told Dr Mathew Barth, psychologist, with whom you spoke on 30 May and 22 June of this year, and who prepared a psychological assessment report tendered at your plea, that neither of your parents were supportive or nurturing.
26You attended school and completed year 12 but you told Dr Barth you were below average academically and had barely passed year 12. You reported no behavioural or social problems at school.
27You left home in your early twenties and moved to Melbourne aged 23. Your family still live in Queensland and you have only sporadic contact with them, and you have not told them about the charges to which you have pleaded guilty and the consequences which you now face.
28You have lived for the past three years in Pakenham with the mother of a friend, Cathleen Feeney. Ms Feeney wrote a character reference for you in which she said, during the time you have lived with her, she has found you to be helpful, respectful, and a caring person.
29Since you left school, you have struggled to find employment. You have had casual positions in retail and you have volunteered in order to try to gain experience and opportunities. You currently have a full-time warehousing position in Dandenong which you enjoy and which has given you a sense of pride in your work.
30You drink only socially. In your early twenties, you were using cannabis daily, but you have reduced your consumption of cannabis and you told Dr Barth that you had not used cannabis for several months.
31You told Dr Barth that you have experienced periods of anxiety and depression since your childhood. You are currently experiencing depression and anxiety, largely referrable to your legal situation. Dr Barth found you to have symptoms sufficiently severe to warrant a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. Dr Barth found you to be an emotionally disconnected individual. You told him you often felt ‘lost’ and aimless regarding the trajectory of your life.
32You have had sexual relationships with females of your own age but none of these relationships have developed into a long-term commitment. You told Dr Barth that you used pornography to alleviate loneliness and because it gave you a sense of excitement.
33Dr Barth found you to be a very immature person. He said that your presentation was more in keeping with a person in his teens and that your understanding of your emotional world was superficial at best. Dr Barth says that although you want to be able to establish greater social and emotional connection with others, your relationships with others remain immature and shallow.
34You told Dr Barth you began using the dark web and viewed child abuse material. You told him you tried to stop but you always went back to viewing it. You expressed remorse and disgust for your behaviour. Dr Barth gives the opinion that, having become immersed in online pornography, you developed dysfunctional sexual cognitions about underage females which formed the basis for deviant arousal patterns. Dr Barth says it is imperative that you participate in a sex offender treatment program. You told Dr Barth you wanted to participate in such a program, and I accept the submission made by your counsel that the only reason that you have not yet embarked on such a program is that you do not have the means to do so. Dr Barth assessed you as a moderate risk of sexual recidivism with the risk confined to online offending.
35I turn now to the nature and circumstances of the offending itself. Your offending involved three types of offending: possession of child abuse material, solicitation of child abuse material, and transmission of child abuse material. Each charge is rolled-up, representing multiple instances of offending, although in respect of charge 1, the charge of solicitation, the instances of solicitation occurred in a single chat and the prosecution concedes that it falls toward the lower end of objective seriousness.
36The transmission offending took place on four occasions over a period of three months, over two platforms with three other unknown recipients. It included both text-based and image/video-based transmission.
37I accept the submission of your counsel that this is not a case that involves a vast amount of child abuse material, nor does it involve a protracted period of offending. In respect of the offence of transmission, you did not seek to profit from trading your material and no money changed hands, but the material that you viewed and traded, and sought to trade, involved nothing short of instances of grotesque child sexual exploitation. You need to understand, Mr Drennan, putting the anime material to one side, what you were looking at did not involve actors or pretence. What you viewed was the real-life abuse of children; abuse involving children being sexually penetrated by adults and by dogs, children being restrained, blindfolded, and rendered unconscious. The material is of a high level of depravity. The situation of the children in some of the material is too horrible even to contemplate.
38These are not victimless crimes. Children around the world are abused and exploited to satisfy a global market in viewing such material. Your consumption not only involves the exploitation and degradation of the children you yourself viewed, but it contributes to a market which leads to the further exploitation of children.
39I accept the submission of the prosecutor that viewing cartoon and animation is also not victimless and harmless. As stated in R v Edwards, a case of the Queensland Court of Appeal,
the interest of those who view that material may be encouraged by what they see. In that way viewing such material is a form of grooming of the watchers themselves.[2]
In this way, the Court found the viewing of cartoon or animation perpetuates the market in child pornography.
[2] [2019] QCA 15, [73] (Morrison JA).
40I regard your offending, when viewed globally, as objectively serious and your moral culpability high.
41I turn now to the sentencing submissions. The prosecutor submitted that your offending was objectively serious and, taking into account all matters raised at your plea, the only appropriate sentence was a term of imprisonment which involved a period of actual custody followed by your release on a recognisance release order which would include a sex offender treatment condition.
42The defence submitted that given your youth and immaturity, your plea of guilty, and to foster your rehabilitation, a community correction order was an appropriate sentence. Defence acknowledged that general deterrence was the primary sentencing consideration in cases involving the possession and transmission of child abuse material but submitted a community correction order would still give proper expression to this sentencing objective.
43In the alternative, defence submitted that if I imposed a period of imprisonment, you should be released forthwith on a recognisance order. I would need to find exceptional circumstances in order to do this. Defence submitted exceptional circumstances were made out by the combination of your youth and immaturity, your plea of guilty, your lack of prior convictions and your hitherto good character.
44I was provided with tables of comparable cases by both the prosecution and defence. These cases have been of assistance to me in sentencing you. They have informed me of the relevant sentencing principles for offending of this kind and they have been of some assistance in formulating an appropriate sentence for you. Ultimately, however, I must sentence you on the facts and circumstances particular to your case.
45The sentence I impose must unequivocally denounce your conduct and give effect to the law’s obligation to protect children from exploitation and abuse. I must ensure that you are adequately punished for your offending. As the Court of Appeal said in Director of Public Prosecutions (Cth) v Garside,
What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending.[3]
[3] (2016) 50 VR 800, 819 [62] (Redlich and Beach JJA).
46General deterrence and denunciation are the primary sentencing considerations in this case, as in all cases involving child abuse material. The possession of child abuse material is very serious offending. It matters not that you did not produce or profit from such material. Conduct of that kind would likely have resulted in other additional charges.
47I accept that you are an immature and emotionally disconnected young man. I accept that prison will be a very difficult place for you, given it will be your first time in custody, your youth, immaturity and mental health difficulties, and all in the context of the ongoing restrictions necessitated by the COVID-19 pandemic.
48I take into account your plea of guilty.
49I accept your prospects of rehabilitation are good and that you are keen to get treatment. As I have already stated in these reasons, I accept the only reason you have not done so is because you are unable to afford such treatment.
50I have concluded, however, that a sentence involving a period of actual custody is required to give proper expression to the principles of general deterrence, denunciation and just punishment. I do not find that the matters relied upon by your counsel individually or in combination amount to exceptional circumstances.
51On charge 1, you are convicted and sentenced to six months’ imprisonment.
52On charge 2, you are convicted and sentenced to one year imprisonment.
53On charge 3, you are convicted and sentenced to two years’ imprisonment.
54Charge 3 is the base charge and it begins today, 12 August 2022.
55I order three months’ cumulation on charges 1 and 2 upon charge 3 and upon each other.
56That is a total effective sentence of two years and six months’ imprisonment.
57In order to achieve the total effective sentence of two years and six months, the start dates are as follows: charge 1, 12 August 2024; and charge 2, 12 November 2023.
58I direct that you serve nine months before being released on a recognisance release order in the sum of $1,000 to be of good behaviour for two years.
59The mandatory conditions of the order are as follows. You are to be subject to the supervision of a probation officer for a period of two years. You are to obey all reasonable directions of that probation officer. You are not to travel interstate or overseas without the written permission of the probation officer. You are to undertake such treatment or rehabilitation programs that the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee directs.
60Conditions necessary to give effect to the mandatory conditions are as follows. You are to report to the Cranbourne Community Correction Centre located at 176 Sladen Street, Cranbourne, Victoria within two clear working days of your release from custody. You are to report to and receive visits from a community corrections officer or officers. You are to notify an officer at Community Corrections of any change of address or employment within two clear working days. You are to attend for assessment and, if assessed as suitable, treatment for a sex offender program or programs to reduce reoffending as directed by the Deputy Commissioner.
61Mr Drennan, I have sentenced you to a total effective sentence of two and a half years’ imprisonment. I have directed that you must serve nine months of that. So, the first thing I need you to understand is that you are going to gaol today for nine months. You will be released after that nine months and then you are going to go onto this recognisance release order, which has the conditions that I have outlined.
62You are to be on that order for two years. That means you are to be of good behaviour, you are to comply with all the conditions, and you are not to offend in two years. If you don’t comply with that order, if you commit more offences, that one year and nine months of your sentence which is in abeyance, you could be re-sentenced on that.
63You go onto the recognisance release order in the sum of $1,000. You don’t have to pay that today. Again, if you breach the release order in the two years that you’re going to be on it, you may have to pay that $1000.
64Charges 1, 2 and 3 are class 2 offences under the Sex Offenders Registration Act 2004 (Vic) and are registrable offences. You are going to become a registrable offender as defined in the Sex Offenders Registration Act 2004 (Vic). You will be required to comply with the reporting obligations set out in the Sex Offenders Registration Act 2004 (Vic) and it will be a reporting period for life.
65There is no pre-sentence detention.
66But for your plea of guilty, I would have sentenced you to four years’ imprisonment with a non-parole period of three years.
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