CDirector of Public Prosecutions v Edwards, William
[2013] VCC 381
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01385
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM EDWARDS |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Bendigo (Sitting in Melbourne) | |
DATE OF HEARING: | 22 March 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | CDPP v Edwards, William | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 381 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence –
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms M. Brown | Office of Commonwealth Public Prosecutions |
| For the Accused | Mr K. McDonald | Stuthridge Legal |
HER HONOUR:
1 William Edwards, you have pleaded guilty to one charge of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age. The maximum penalty applicable for that offence is 7 years' imprisonment. You have also pleaded guilty to one charge of accessing child pornography using a carriage service, the maximum penalty applicable to that offence is 15 years' imprisonment. You have also pleaded guilty to making available child pornography material using a carriage service. The maximum penalty for that offence is 15 years' imprisonment. Charges 1, 2 and 3 on the Indictment are offences pursuant to the Criminal Code (Cth).
2 You have also pleaded guilty to one charge of knowingly possess child pornography, for which the maximum penalty is 5 years' imprisonment. This is an offence pursuant to the Crimes Act 1958 (Vic).
3 These crimes arise out of an investigation conducted by the Australian Federal Police (“AFP”). It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say that the facts in this case are most serious and disturbing.
4 Briefly, by way of a summary of your offending. On 9 August 2011, a member of the AFP was performing covert duties in the online file sharing program known as “Gigatribe”. This is an Internet program which enables users to privately view and share folders and files of others that are part of the users’ private network. Users can invite others to join the network and can choose to accept or decline invitations to do the same. Program users must first register a unique username and password to log into the program. Gigatribe also allows users to communicate by instant messaging by virtue of an inbuilt chat function.
5 Whilst online in Gigatribe, the AFP agent observed a user with the name “Mattyboy”. The user profile indicated “Mattyboy” was a 15 year old male from Australia. “Mattyboy” was online, which meant other users could access and download files from four of the five folders of material linked to his account. A fifth folder was password protected and the agent engaged in an online chat with “Mattyboy”, who advised the password for the protected folders was “Yummyboys”.
6 The agent accessed several files that “Mattyboy” had made available for other users. The files were found to contain child pornography material. Inquiries revealed the internet protocol address assigned to the computer “Mattyboy” user was allocated to a Telstra Bigpond account in the name of William Edwards.
7 On 18 August 2011, AFP members executed a search warrant at 28 Tyler Street, Goornong, Victoria. You were not present at the time, however, during that search, a Toshiba laptop computer and four discs were located in your bedroom. An examination of the computer showed that Gigatribe had been installed and the username “Mattyboy” was saved to the log-in screen. Analysis of the Toshiba laptop and discs revealed child pornography material. Analysis also revealed you had been using the “Yahoo Messenger” program to chat with a 13 year old boy.
8 Turning to Charge 1. Between 29 September 2010 and 10 October 2010, (using the name “Jayoralboy") you engaged in online chats via Yahoo Messenger with a user by the name of “Littletyler52”. The latter advised you on several occasions he was 13 years old. The chats were sexually explicit. The "chat" on 29 September 2010 was read into the transcript.
9 On 2 October 2010, “Littletyler52” sent you a picture of his genitals and thereafter an exchange occurred, also read into the transcript by the prosecution.
10 On 5 October you conversed with “Littletyler52” again making sexually explicit references.
11 Turning to Charges 2 and 3. You downloaded and installed Gigatribe onto your computer and used it to download child pornography files. In addition to using Gigatribe to download pornography, you further shared five folders of child pornography material with other Gigatribe users.
12 In addition to using the Gigatribe application, you entered search terms into Google such as “boys 14 years old kid porn free videos” amongst others also read into the transcript.
13
You engaged in online chats with other Gigatribe users on 12 July 2011,
13 August 2011and 15 August 2011, and these were also read into the transcript.
14 In relation to the pornography found in your possession (Charge 4), a total of 266 images and 165 videos were located. There were a total of 246 Level 1 images and videos, which depicted erotic posing of children with no sexual activity, 81 Level 2 images and videos which depicted sexual activity between children or solo masturbation by a child, three Level 3 images and videos depicting non-penetrative sexual activity between adults and children, 114 Level 4 videos and images which depicted penetrative sexual activity between adults and children. There were no images or videos relevant to Level 5, which would have been categorised as depicting sadism, bestiality, humiliation or torture.
15 I viewed a sample of the pornographic material relied upon by the prosecution in this case. It is disturbing to say the least. There are of course varying degrees of gravity of pornographic images and videos. The images that I viewed, at least, involved exploitation of the young and defenceless. The images and videos you possessed were no doubt children who were overborne by cruel and/or manipulative adults. There is the real potential for the children involved in these images and videos to be adversely affected for the rest of their lives.
16 These are, as has often been stated in the courts, not victimless crimes. They show the tragic and sad exploitation of children. The maximum penalties imposed by Parliament reflect the seriousness with which Parliament views this offending.
17 On 26 August 2011, you attended AFP headquarters in Melbourne and participated in a record of interview. You were co-operative and made admissions. Amongst your answers in that interview, you said you did not have any sexual desires or interest towards boys whatsoever but “when you get in that zone, you get caught up in it and you don’t know what you’re doing.” You agreed you were the user of the Gigatribe account “Mattyboy”. You said you traded with other users so that they could trade with you. You said you were interested in young boys, “basically just young boys really … between 11 and 15 … just younger type boys, yeah, but not babies, not anywhere in that group”. You said that after downloading child pornography onto your computer you would download the material onto a disc.
18 When you viewed the images, you said you felt “sick and stupid … it’s just a thrill like, you know. It didn’t really excite me or do anything for me”. You said initially you did not realise what you were doing was wrong – “not at first … when you get caught up in it you don’t realise you’re actually doing anything wrong but … I do know that I've done wrong”. I have no doubt you do.
19 You said you would view the images and videos but would not masturbate to them. You made child pornography available to others so that they would trade with you.
20 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial, including potentially a young witness relevant to Charge 1. I also take into account in your favour the timing of your plea of guilty commenced with admissions made by you to the police at the time of the interview and that you formally indicated your plea of guilty at a committal mention.
21 There is utilitarian value in your plea of guilty. I am prepared to accept your plea of guilty indicates remorse for your actions.
22 You do not have any prior convictions. However, your prior good character is of less relevance when sentencing for these offences, and I shall refer to that again later in my sentencing remarks.
23 Mr McDonald, who appeared on your behalf, provided a helpful written outline of submissions which he addressed during the course of your plea hearing. In brief, he observed that the Court of Appeal has repeatedly referred to the proper approach when sentencing for offences involving child pornography. He also referred me to the decision of DPP (Cth) v Ison [2010] VSCA 286 which affirmed an earlier decision of DPP v Smith [2010] VSCA 215 at paragraph [23].
24 In Smith, the court referred to R v Gent (2005) 162 A Crim R 29, which outlined the relevant considerations when determining the nature and gravity of the offending in relation to material possessed.
25 Mr McDonald conceded that general deterrence was regarded by the courts as a paramount sentencing consideration for child pornography offences, and that less is to be given to an offender’s prior good character, although I note not eliminated.
26 Further, Mr McDonald conceded that the court in Smith stated a sentence of immediate imprisonment would ordinarily be warranted. The court recognised, however, there would be cases where a sentence would not involve a period of custody to be served and such, of course, is also the law.
27 It is clear from the authorities the length of time involved in accessing, storing and classifying child pornography is relevant to sentence. As I understood it, the prosecution position in this case was that that was over approximately a period of five months.
28 Mr McDonald also correctly observed that whilst you would, as a result of these offences, be subject to the Sex Offender Register for life, the consequences of that registration was not relevant when determining the sentence to impose for your offending.
29 As Mr McDonald also observed, following sentencing to a term of imprisonment on two charges, you thereafter fell to be sentenced as a Serious Sexual Offender, which would enliven ss.6D and 6E Sentencing Act 1991.
30 Turning specifically to your offending, he conceded that objectively offences of child pornography were serious, although he submitted there were no Category 5 images, and he is correct. He, however, agreed the second largest volume of material involved Category 4 images and videos. The volume, he submitted, was not the most serious seen before the courts. I agree, nor is it the least in number.
31 Mr McDonald urged that in relation to Charges 2 and 3, given the nature of those charges and the material that related to them, the sentences imposed should be concurrent. Ms Brown, on behalf of the prosecution, agreed. Such a concession by Ms Brown was, in my opinion, appropriate. In support of concurrency of sentence, in relation to Charges 2 and 3, I was referred to the decision of R v Fulop (2009) 236 FLR 376. Regarding charges of access and possession of child pornography, the court concluded that the elements of those two offences were not identical and therefore some cumulation would be appropriate (see paragraphs 10, 11 and 12 of that decision),
32
Mr McDonald, on your instructions, stated you could not provide any good reason for your offending, although noted, according to the report of
Dr Sullivan, you did not have paedophilic tendencies.
33 Mr McDonald referred to your background and history. You were bullied at school. After leaving school you were employed with the Red Cross. During that employment, you suffered a needle-stick injury which led to you developing Hepatitis C. The effects of that were still relevant, resulting in you being on a pension.
34 You met your partner, Kathleen, when you were 17 years of age, and lived together in a de facto relationship for approximately two and a half years. Although that relationship is no longer, you remained good friends, although had not spoken to her in the past few months.
35 When you were 18 years of age, in 1988, your son Aaron was born. Unfortunately he was stillborn. You and Kathleen remained together through 1989 and your son Nathan was born. You were 19 and Kathleen 20 years of age. You remained together for eight months prior to separating.
36 Despite being separated, however, you instructed that you wanted to be a “hands on” father, and you described your relationship with your son as very close.
37 Unfortunately tragedy occurred when your son was 16. Kathleen went to attend a funeral at Wodonga, as I understand it, and left your son behind, being cared for by others. Upon returning home from the funeral Kathleen walked into the home first, with you behind her. Your son had died of an overdose of epileptic medication. You said Nathan was the love of your life and that you continued to have raw and unresolved grief. I accept that.
38 The deaths of your sons has affected your social functioning. There was also the death of your father in 2005 following his battle with cancer. You cared for him for approximately three years, following his diagnosis in 2002.
39 You moved to Goornong to live with your mother and brother in approximately 2010, and have remained there since. Your mother, I was told, did not know of the offences before me, although you had told your sister, Lynette.
40 Whilst your mother required some assistance in her daily living, Mr McDonald was not relying on family hardship in mitigation of your sentence, but rather as providing background information. One of your sisters lived in Kangaroo Flat not far from your mother, and your other sister lives nearby. There were, you said, frequent family gatherings.
41 Following your offending, your computer was forfeited by police. You instructed Mr McDonald you were adamant you did not want anything to do with computers or the Internet in the future, being concerned about the possibility you may be “tempted” again.
42 As Mr McDonald observed, you present before the court as a person of previous good character without any prior court appearances. However, whilst that is to be taken into consideration, such is of reduced weight for offences of this nature.
43 Mr McDonald submitted you had demonstrated remorse for your offending in two ways firstly, having sought treatment from Mr Broughton, and secondly, your plea of guilty to this offending which reflected not only the utilitarian benefit of your plea but also provided an indication of your remorse and prospects of rehabilitation. I have previously referred to the relevance of your plea of guilty.
44 Mr McDonald relied on the report of Dr Danny Sullivan, in which he concluded on absence of paraphilia and further likelihood of your rehabilitation should you receive offence-specific intervention.
45 Mr McDonald submitted that the reports before me would enliven a number of the Tsiaras [1996] 1 VR 398 principles as restated in R v Verdins (2007) 16 VR 269, specifically principles 1 through to 5. In support of this submission, Mr McDonald relied upon your depressive symptoms, dysthymia and intellectual disability. He referred me to the decision of R v Latif & Ors [2013] VSCA 51 in support of his submission that those Verdins principles would apply when sentencing you. I shall refer to Verdins later in these sentencing remarks. Ultimately, as I understood his submission, he was not relying on Verdins as “a silver bullet” when sentencing you, however, that it warranted some sensible moderation of your sentence.
46 In my opinion, I do not consider the principles of Verdins have been enlivened in this case in relation to the restatement of Tsiaras principles 1 to 4. I will be coming back to that in a moment. I do, however, accept that there may be some application and moderation of your sentence applicable in relation to the restatement of Tsiaras principle 5, that is, the existence of your condition at the time of sentence can mean that a sentence of immediate imprisonment will weigh more heavily on you than on a prisoner in normal health.
47 I was provided with a report from Mr Jeff Broughton, Psychologist, dated 29 December 2012. You were referred to him by your general practitioner for assessment and treatment under a mental health treatment plan on 27 July 2012. He provided further details of your background. You reported that you were the youngest of five children, with two older brothers and two older sisters. At assessment, you were not then in a relationship although had two children from a previous relationship and they have both tragically died. Not surprisingly, he said, you struggled through significant grief and loss as a result. You recalled having difficulties at school academically and that learning was always difficult for you. You continued to struggle with reading and writing.
48 During sessions with you, you presented with appropriate appearance and behaviour, although your speech was slightly slurred with some possible motor difficulties. Your mood fluctuated. You appeared to have difficulties understanding concepts and memory recall. You were assessed by Mr Broughton for your cognitive functioning. Your full scale IQ result fell within the extremely low range of ability and the results of his testing were outlined in his report.
49 You had been referred by your doctor for assessment and treatment for depression. Your IQ was in the extremely low range of intellectual ability. You met the DSM-IV criteria for a mild intellectual disability.
50 I was also provided with a report from Dr Danny Sullivan, Consultant Forensic Psychiatrist, dated 30 January 2013, who met with you on 11 January 2013. Dr Sullivan obtained further details of your personal history.
51 You grew up in Glenroy, attending Glenroy North Primary School, where you struggled with learning, achieving only basic literacy. You were subjected to teasing and bullying because you were slow at learning and wore glasses.
52 You attended Glenroy Technical College until Year 10, and after leaving there worked as a cleaner and labourer. In 1996 you went onto the Disability Support Pension. You said you did not have any friends outside your family and acknowledged that you were lonely.
53 You and your mother and older brother live together. Your brother has a disability relating to an industrial accident and your mother has medical problems, but as I have previously said, your two other sisters live in the Bendigo area.
54 Turning to your medical history. You reported chronic active Hepatitis as a result of the needle-stick injury, to which I have previously referred. The further details of your medical history were set out within his report (paragraph 12).
55 You denied any previous contact with psychiatric services, had no admissions to any psychiatric units and denied being treated with antidepressants. You did, however, acknowledge depression going back some years.
56 You reported once in the past overdosing and cutting yourself with razor blades but denied any other suicidal ideation. You had attended with Mr Broughton in recent years for counselling.
57 Turning to your substance use history, you told Dr Sullivan you drank occasionally but had never been drunk, although there was a period of time after the deaths of your father and son, when you drank heavily. You denied any other substance use, including cannabis, opiates, stimulants and hallucinogens.
58 Turning to your psychosexual offending history, you received limited sexual education. You reported occasional use of pornography but denied that this was excessive. Following the death of your son and father, you moved towards communications through the internet. You said you were hoping to establish, “like a father-son relationship” and that you were looking for a “son figure”. These statements by you are concerning, in my opinion, when one reads your conversation in Charge 1. You said you pretended to be younger, did not find the images you looked at sexually arousing and again this seems unusual or arguably inconsistent, given the content of that discussion.
59 Psychological assessment of you indicated a full scale IQ of 65.
60 In Dr Sullivan’s opinion, you were socially isolated and had limited interests. You had an established mild intellectual disability. Your history was consistent with long standing mood disorder, "likely" dysthymia, which reflected pervasively lowered mood, which may reflect your dissatisfaction with your life and the constraints of your intellectual disability on your capacity to improve your situation. You had not previously been treated with medication or psychological therapies.
61 In the opinion of Dr Sullivan, there was no indication of psychotic illness, personality disorder or substance use disorder, nor was there any evidence of a paraphilia such as paedophilia. Dr Sullivan observed that whilst the activity which constituted your offending indicated a fascination with teenage boys, there was no evidence that it extended significantly to pre-pubescent boys. In part, your offending was associated with your isolation and lack of meaningful occupation.
62 Your intellectual disability was "in part" causally associated with the alleged offending in that it was likely your judgment was mildly impaired by your cognitive limitations and your capacity to think clearly. Your intellectual disability also reduced your capacity for effective social interactions and, as such, incarceration would be more burdensome for you.
63 In the future, Dr Sullivan suggested you be assessed for offence-specific intervention through Disability Forensic Assessment and Treatment Service or Disability Pathways. Further, that you engage in psychological treatment for mood disorder and consider treatment with an SSRI antidepressant.
64 I turn to legislation and authorities. In the Explanatory Memorandum of The Crimes Legislation Amendment (Sexual Offences against Children) Bill 2010 the penalty for offences pursuant to s.474.19 was increased from 10 to 15 years' imprisonment.
65 Regarding the State offence of possession of child pornography, in the Second Reading Speech of The Crimes (Amendment) Bill 5 October 2000, the Attorney General referred to the increase in the maximum penalty for possession of child pornography from two to five years. He referred to the internet having increased access to and distribution of pornographic images resulting in a proliferation of child pornography. The increase in penalty from two to five years' imprisonment would, he said, send a clear message to those who preyed on children that the Government and the community would not tolerate this behaviour.
66 Specifically regarding the Victorian legislation, a number of authorities have considered the offence of possession of child pornography. In R v Curtain [2001] VSCA 156, Vincent JA noted that prior to 22 November 2000, the maximum penalty for possession of child pornography was two years and that the penalty was increased to a maximum of five years' imprisonment. His Honour stated:
“The increase in penalty and the categorisation of the offence as indictable were obviously intended to 'send a clear message', to use the expression employed by the Attorney-General in his Second Reading Speech introducing the amendment, of the serious view that was taken of the possession of child pornography by this community and to increase the deterrent effect of the law.”
67 It is clear from the authorities, that both Federal and State Parliaments are united in their endeavour to minimise, if not eliminate, child sexual abuse and a number of decisions have reinforced this legislative objective.
68 In R v Jones (1999) 108 A Crim R 50, the increase in penalty for possession of child pornography was described in this way:
“It is apparent that … the Parliament is inviting courts vigorously to pursue the objectives of general deterrence and denunciation in sentencing offenders.”
69 In R v Liddington (1997) 18 WA R 394, a decision of the Supreme Court of Western Australia, Ipp J stated:
“The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind. It may also be said that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images …”
70 See also R v Jongsma (2004) 150 A Crim R 386.
71 It is clear that when imposing sentence, the court needs to deter people from collecting, retaining, disseminating and possessing such material.
72 The need for general deterrence is paramount for your offending. There is no doubt this is an international problem. Such offending is difficult to detect and difficult to investigate.
73 In R v Coffey (2003) 6 VR 543, the Court stated:
“ … child pornography of this kind involves the corruption and violation of children and the possession of such pornography creates a market which encourages the further exploitation of children. The offence created by s 70 of the Crimes Act, which carries a maximum custodial penalty of five years’ imprisonment, is intended, among other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it.”
74 It is apparent from the authorities when considering offences of this kind, including all those before me, good prior character has less significance. See R v Gent (2005) 162 A Crim R 29.
75 In R v Booth [2009] NSWCCA 89, the court reinforced the significance of general deterrence.
76 In the decision of Gent, the court also referred to a range of factors relevant when assessing the objective seriousness of an offence of importation in that case of child pornography. You are of course not charged with importation, nevertheless these matters are relevant to offending involving child pornography. Those factors include:
(a) the nature and content of the pornography material, including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of the material possessed by the offender;
(c) the number of different children who are depicted and thereby victimised;
(d) whether the possession is for the possession for sale or further distribution; and
(e) whether the offender will profit from the offence.
77 When sentencing for Federal offences, s.16A(1) Crimes Act (Cth) 1914 states that the primary obligation of a sentencing judge is to impose a sentence that is of severity appropriate in all the circumstances of the offence. I must, amongst other things, take into account when determining your sentence the matters listed in s.16A(2). I have taken all those matters relevant and known into consideration when determining the appropriate sentence. In addition, I have taken into account sentencing considerations in s.5(2) Sentencing Act 1991.
78 I am also aware, pursuant to s.17A(1) Crimes Act (Cth) which essentially restates the common law position:
“A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.”
79 The same principle applies when sentencing for State offences (see s.5(4) Sentencing Act 1991).
80 Mr McDonald submitted that an immediate term of imprisonment was "not" warranted in your case. That I could take into account the seriousness of your offending and all matters in mitigation, and impose a Community Corrections Order for both the State and Commonwealth offences. In particular, such would be open to me, he submitted, if I concluded that Verdins principles were applicable when sentencing you.
81 Alternatively, he submitted I consider imposing a Recognisance Release Order. Without abandoning either of those two primary submissions, should I consider that a term of imprisonment was the only sentence appropriate, it should be less than three years with a significant portion of that sentence to be served by way of a Recognisance Release Order. In my opinion, a Community Corrections Order or a Recognisance Release Order on its own would not adequately address all sentencing considerations.
82 Ms Brown, on behalf of the prosecution, referred me, amongst other authorities to which I have previously referred, to DPP v D’Alessandro (2010) 26 VR 477, which further referred to relevant sentencing principles, although I again note the maximum penalty then for the Commonwealth offences was 10 years' imprisonment.
83
Ms Brown submitted that the maximum penalties applicable to these offences were a relevant sentencing consideration. They showed Parliament’s view of the seriousness of this offending. In particular, the maximum penalties for Charges 2 and 3 had increased from 10 years’ imprisonment to 15 years’ imprisonment, and in relation to Charge 4 there had been an increase from
2to 5 years' imprisonment. That of course is relevant.
84 I observe the decision relied upon by Mr McDonald of DPP (Cth) v Ison [2010] VSCA 286 involved maximum penalties of 10 years’ imprisonment in relation to Counts 1 and 2 in that decision. Also, in Ison there were three charges in that case, there are four involving you. There was no charge in Ison of making child pornography available. The maximum, as I said, for the Commonwealth offences in Ison was 10 years. I note of course, however, the longer period of time in some of the offending involved in Ison compared with yours.
85 Further, Mr McDonald supplied extracts from the Judicial College in relation to the child pornography and grooming offences, which included DPP v Groube [2010] VSCA 150. Again I note the maximum penalties applicable were different from those that are before me.
86 There is no doubt that the previous decisions of the Court of Appeal and other jurisdictions within Australia are helpful in determining the appropriate principles when sentencing. As I discussed with Mr McDonald, however, there are limitations comparing cases factually as circumstances vary enormously, as do matters in mitigation and personal to a particular offender. Ultimately, in the end, I must determine the appropriate sentence in your case on the basis of the well established principles and also the circumstances of your offending and all matters personal to you.
87 Ms Brown conceded the number of images or items possessed by you were not at the higher end of the scale. She submitted the material, whilst not for sale, was for further distribution. There was a benefit to you from your offending because you had material to trade. Whilst she agreed there was no commerciality involved in your offending, you nevertheless derived that benefit.
88 Ms Brown submitted general deterrence was a relevant sentencing consideration for these offences and, of course, that is so.
89 When sentencing for the Commonwealth offences, I needed to address s.16A she submitted. Your offending created a market for further child pornography (citing R v Jongsma (2004) 150 A Crim R 386). The length of time over which you accessed and made pornography available was an aggravating factor (citing R v Gent (2005) 162 A Crim R 29). Possession of child pornography was not a victimless crime (s.16A(2)(d) being relevant). Those propositions are correct.
90 She agreed your plea of guilty was entered at the earliest opportunity and that you should receive the appropriate benefit for that, and of course I agree.
91 She submitted there was a need for adequate punishment (s.16A(2)(k)) and that good character would be of less weight when sentencing.
92 Ms Brown submitted your offending behaviour, in particular in relation to Charge 1, showed you had received sexual gratification in this offending. Ultimately, whether or not there was a sexual gratification, is neither an aggravating feature nor a mitigatory feature of your offending in my opinion.
93 Turning to the principles in Verdins, Ms Brown submitted that there should be no application of those principles when sentencing you other than the restatement of principle 5 from Tsiaras. She submitted that the applications of Verdins principles were “exceptional”.
94 Ms Brown referred to the decision of Charles v R [2011] VSCA 399. The court referred in that decision to the decision of R v Sebalj [2006] VSCA 106 in which the President of this court stated:
“Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry." [142]
95 In Charles, the court also referred to the principles discussed from the authorities when dealing with the establishment of a link between a mental condition and the offending conduct, in particular I note points 5 and 6, and that is not a restatement of Tsiaras, it is points 5 and 6 which is in paragraph [162] of Charles.
96 Ms Brown submitted the report of Dr Sullivan did not go far enough to enliven the principles in Verdins, given his reference to “in part causally ...” and “likely his judgment ...”. She submitted the necessary nexus was not present.
97 I turn to the principles stated in Verdins. Mr Broughton, in his report, stated you had a full-scale IQ of 65. However, on five of the four sub-tests you performed, you had an IQ of 70 or more. Mr Broughton concluded you had a mild intellectual disability.
98 Dr Sullivan, in his report, noted you had not had any contact in the past with psychiatric services, no admissions to psychiatric units, nor had you been treated with antidepressants. I note in relation to the latter, you had been seeing Mr Broughton in recent years for counselling and it would appear medication was not prescribed.
99 Dr Sullivan also concluded you had a mild intellectual disability with an IQ of 65. However, in relation to his further diagnoses, at best he described you as having “likely dysthymia”. Your intellectual disability was “in part” causally associated with the alleged offending. Further, it was “likely” your judgment was mildly impaired.
100 I was referred by Mr McDonald to the decision of Latif v R [2013] VSCA 51 where there has been a most recent discussion of the principles in Verdins. I note in that case, however, Mr Patrick Newton, who provided written material in relation to one of the applicants on appeal, concluded that applicant had been “experiencing some noteworthy symptoms of depression” with a “diagnosis of dysthymic disorder” (a positive diagnosis of such), which, according to Mr Newton, “would have been affecting him at the time of his offending” in that case. Further, the applicant had an “elevated risk of experiencing a gradual deterioration in his mood as time progresses”. In my opinion, the conclusions reached by Mr Newton in that case were far more conclusive and concrete than those proffered by Dr Sullivan. The court is obliged to, as I say from the case of Charles, consider these matters.
101 In Latif, the court considered further the principles stated in Verdins at paragraph [80](a)–(f), citing Tran v R [2012] VSCA 110. I turn to this discussion and it is relevance to your case. I note in your case, Dr Sullivan does not in any way link your ability to exercise appropriate judgment or to make calm and rational choices as a result of “likely dysthymia” (see paragraph 28). At best, as I understood his report, your intellectual disability was only in “part” associated with your offending (see paragraph 30 of his report).
102 Ultimately, Mr McDonald and Ms Brown agreed that there were a number of relevant sentencing principles that applied to these offences of child pornography. Ultimately Mr McDonald, whilst accepting those, submitted that in your case, given matters in particular personal to you, including your lack of prior criminal history and anything subsequent, and the reports of Dr Sullivan and Mr Broughton and their respective conclusions, I should not impose a sentence which required a term of immediate imprisonment.
103 Ms Brown submitted, on a similar analysis of all relevant considerations, your sentence should involve an immediate period of incarceration.
104 You are sentenced as a serious sexual offender, as I understand it, in relation to Charges 3 and 4 and, as such, ss.6D and 6E apply. Also I note, as I previously have stated, that in relation to the Tsiaras principles I accept the restatement of the Tsiaras principle 5 as being applicable in your case and have taken that into account when determining the appropriate sentence.
105 Now, this is what I intend to do by way of sentence. I think I indicated this to the parties the last time you were here. I intend to indicate what the sentence I am proposing is but it is the structure that I need help with and, in other words, it just needs to fit in with the dates and the rest of it. So this is not a case, your client has to understand Mr McDonald, of me negotiating with the prosecution, I have made up my mind what the sentence should be. I just need to make sure the structure is correct because it is a combination, in particular, of Commonwealth and State offences and I hope you can make that clear should there be any confusion in Mr Edwards' mind about this process.
106 All right, you are going to be handed a copy of it. I will read it into the transcript as it currently stands.
107 Obviously, when sentencing, I have taken into account principles of totality and proportionality but this is what I propose. Charge 1, convicted and sentenced to 7 months’ imprisonment. Charge 2, convicted and sentenced to 10 months’ imprisonment. Charge 3, convicted and sentenced to 10 months’ imprisonment. Charge 4, convicted and sentenced to 9 months’ imprisonment.
108 Charge 4 is to be the base sentence. I note that is a State offence so you need to make sure that my understanding is you can do State offences first.
109 Then I intend that sentences in Charges 2 and 3 are concurrent but there would be cumulation of 4 months of Charge 1 upon the State sentence and 4 months of Charge 2. So 2 and 3 are concurrent but I am cumulating some of Charge 2. Does that make sense? I hope it does.
110 That results in a total effective sentence of 17 months’ imprisonment, and we will come to the rest later but that is what I would like checked. Does that make sense to you, Madam Prosecutor?
111 MS BROWN: Yes it does, Your Honour.
112 HER HONOUR: Well before I give you some time to look at that, Mr McDonald before I leave the Bench is that scenario clear so that there can be some meaningful discussion regarding the structure?
113 MR McDONALD: Yes, Your Honour.
114 HER HONOUR: Whilst that occurs, I will have Mr Edwards just taken out the back, not far away. It will be five minutes perhaps for this to be formalised and then we will come back and I will formally announce sentence and continue the rest of the matters that I need to. Thank you, Mr Edwards, if you could just go out the back there for five minutes.
115 (PRISONER REMOVED).
116
HER HONOUR: Madam Prosecutor, you can work on this and check with
Mr McDonald. It is the structure I am interested in, all right?
117 MS BROWN: Yes, Your Honour.
118 HER HONOUR: I will come back in five hopefully.
119 (Short adjournment.)
120 HER HONOUR: Thank you, Mr Edwards, just stay seated for the moment. I came onto the Bench, there has not been any discussion about your case in your absence, all right. Yes, what have you done? What has happened? Have you sorted it?
121 MS BROWN: We have, Your Honour.
122 HER HONOUR: Right, what is it then?
123 MS BROWN: Thank you for allowing us that time.
124 HER HONOUR: It took forever.
125 MS BROWN: It's a ridiculously complicated process, Your Honour. I have filled out the recognisance release - - -
126 HER HONOUR: Let's go back to the major issue, shall we? So how is it going to be worded? "On Charge 1 …" yes, to commence when?
127 MS BROWN: Your Honour, if we could start with Charge 4 as that is the base sentence?
128 HER HONOUR: Yes, Charge 4 commences today?
129 MS BROWN: So Charge 4 will be nine months today.
130 HER HONOUR: Today 27 March 2013.
131
MS BROWN: And as that is a State sentence, Your Honour must set a
non-parole period of five months.
132 HER HONOUR: Set a non-parole period of five months, yes.
133 MS BROWN: Charge 2 will commence three months after the commencement of the sentence imposed on Charge 4.
134 HER HONOUR: Yes.
135 MS BROWN: Charge 3 will also commence - - -
136 HER HONOUR: Charge 3, why?
137 MS BROWN: Charges 2 and 3, being both a period of ten months are concurrent.
138 HER HONOUR: Correct. So I've still got to go through that as well. All right, so Charge 3 commences?
139 MS BROWN: Three months.
140 HER HONOUR: Same thing, all right. So three months after the commencement of the sentence imposed on Charge 4. Yes?
141 MS BROWN: Charge 1 commences ten months after the commencement of the sentence on Charge 4.
142 HER HONOUR: Commencement of the sentence on Charge 4. So you don't put dates because it's administrative, as I understand it, is that right? There might be lockdowns and various other things that affect the date but that's the correct wording, is that correct?
143 MS BROWN: It is, Your Honour.
144 HER HONOUR: Well, Mr McDonald, have you had a look at that and does that accord with your understanding of the way the structure should be done?
145 MR McDONALD: I have and it does, Your Honour.
146 HER HONOUR: All right, thank you for that. Well, I haven't got to the rest yet so can we just wait a minute. We'll deal with the first part first. Now, can you just stand for the moment, Mr Edwards, thank you. I will read this out as it is.
147 On Charge 1, you are convicted and sentenced to 7 months’ imprisonment.
148 On Charge 2, you are convicted and sentenced to 10 months’ imprisonment.
149 On Charge 3, you are convicted and sentenced to 10 months’ imprisonment.
150 On Charge 4, you are convicted and sentenced to 9 months’ imprisonment.
151 Charge 4 is the base sentence. Charges 2 and 3 are concurrent by way of cumulation and concurrency. In relation to Charge 1, 4 months of that charge is to be cumulative upon the State sentence of 9 months and 4 months of Charge 2 is to be cumulative upon the State sentence.
152 That has to be worded as follows.
153 Charge 4 commences today, 27 March 2013, and I set a non-parole period of 5 months.
154 Charge 2 commences 3 months after the commencement of the sentence imposed on Charge 4.
155 Charge 3 commences 3 months after the commencement of the sentence imposed on Charge 4.
156 Charge 1 commences 10 months after the commencement of the sentence imposed on Charge 4.
157 That results in a total effective sentence of 17 months' imprisonment.
158 For the sake of clarity, the sentences of cumulation are cumulative upon each other and upon the base sentence which resulted in that structure.
159 I then direct that you serve 5 months of that term of imprisonment, and then you are to be released on a Recognisance Release Order in the sum of $1000 for a period of 3 years, with a condition of that order that you participate in the Sex Offender Program.
160
Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following a plea of not guilty but a jury finding you guilty, I would have sentenced you to a term of imprisonment of 3 years 6 months and set a
non-parole period of 2 years.
161 Pursuant to s.18(4) Sentencing Act 1991 and s.16E(2) Crimes Act (Cth) I declare that you have spent 5 days in custody, up to and including yesterday, 26 March 2013, by way of pre-sentence detention and I direct that this be entered into the records of the court.
162 By your plea of guilty and conviction on Charges 2, 3 and 4, you are required to be registered pursuant to the Sex Offenders Registration Act 2004. Charges 2, 3 and 4 are Class 2 offences. You are required to be on that register for life.
163 Now, before we go on any further, I have to tell you a little bit about that Recognisance Release Order in terms that you are likely to understand, as I understand the legislation. The effect of my order is that you are sentenced to 5 months' immediate imprisonment.
164 Following that, you are then subject to what is called a Recognisance Release Order. Now, turning to that Order, that relates to the Commonwealth offences, I am obliged to explain it a little bit to you. What that means is, as I say after 5 months you will not be required to serve the remainder of your sentence, which was 17 months, so 17 less 5 is 12, you will not be required to serve that remaining 12 months but you are then going to be released on a Recognisance Release Order and allowed, effectively, to serve the balance of that term, ie. the 12 months, in the community. Now, that order means that you are going to be subject to the conditions you be of good behaviour, don't get into any more trouble with the police at all. Also, that you participate in the Sex Offender Program.
165 Now, I have to inform you that if you fail without reasonable excuse to fulfil or comply with those conditions, you may be brought back before the court and back before me, and that order may be revoked or cancelled and the $1000, because it's going to be in the sum of $1000, will be forfeited so you don't have to pay that up front, it is only if you breach the order. You follow? And you may be dealt with by me for the offences in respect to which the order was made and you may well be required to serve the balance of that term of imprisonment, ie. the 12 months.
166 Now, I have to inform you also pursuant to s.20AA Crimes Act in certain circumstances you can apply to the court for a discharge or variation of the terms of the duration of that Recognisance Release Order.
167 Now, that seems to me to be satisfactorily explained. Anything to say to the contrary, Ms Brown?
168 MS BROWN: No, Your Honour.
169 HER HONOUR: All right, have you got a copy of the order there?
170 MS BROWN: I do, Your Honour, and my learned friend has had an opportunity to look at it.
171 HER HONOUR: All right.
172 MS BROWN: I don't want to unnecessarily complicate the matters but for the sake of clarity the Recognisance Release Order will release the accused after serving 2 months. He will be serving 5 months but by virtue of the commencement dates, he only has to serve 2 months on the Commonwealth sentence before release but the Recognisance Release Order and the non-parole period align so that he will serve 5 months before release.
173 HER HONOUR: One day the Commonwealth can sit down and talk to the State and work out why we have to have these most complicated and convoluted sentences and structures. Do you agree that that's the way it should be worded?
174 MR McDONALD: I do, Your Honour, yes.
175 HER HONOUR: I don't need your opinion about the latter. And the Sex Offenders Register, Mr Edwards, you're just being asked to sign that you have received the paperwork. If you don't want to sign it, fine, but that's just indicating the paperwork and the other one is the order or the Recognisance to be effectively of good behaviour and you have to sign that if you agree. If you don't, well all right. Do you want to go back and explain it or not, Mr McDonald? It's up to you.
176 MR McDONALD: I've already explained it to my client previously, he's aware of the registration - - -
177 HER HONOUR: All right, thank you. Anything else? No other orders sought? Nothing else, no?
178 MS BROWN: No, Your Honour.
179 MR McDONALD: No thank you, Your Honour.
180 HER HONOUR: Thank you both very much for your assistance. Could you remove Mr Edwards please, thank you.
181 (PRISONER REMOVED).
182 MS BROWN: As Your Honour pleases.
183 MR McDONALD: May it please the court.
184 HER HONOUR: Thank you.
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