CDirector of Public Prosecutions v Hardy

[2021] VCC 856

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-21-00066

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

LAURENCE HARDY

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2021
DATE OF SENTENCE:	24 June 2021
CASE MAY BE CITED AS:	CDPP v Hardy
MEDIUM NEUTRAL CITATION:	[2021] VCC 856

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Using a carriage service to access child pornography material – Possessing child abuse material obtained or accessed using a carriage service - downloaded a vast amount of material over a 12 month period – No relevant priors – Imprisonment – Non parole period – Fine for summary offence

Legislation Cited: s.474.19(1), 474.22A(1) Criminal Code (Cth)

Cases Cited:R v Martin [2014] NSWCCA 283 - R v De Leeuw [2015] NSWCCA 183 - Cluett v The Queen [2019] WASCA 111 - DPP (Cth) vGarside [2016] VSCA 74 - R v Porte [2015] NSWCCA 174 – Worboyes v The Queen [2021] VSCA 169 – DPP vSwingler [2017] VSCA 305 - DPP (Cth) v D'Alessandro (2010) 26 VR 46

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms R. Fleming	The Commonwealth Director of Public Prosecutions
For the Accused	Mr M. Sturges	Greg Thomas Barrister & Solicitor

HIS HONOUR: 

1Mr Laurence Hardy is 51, having been born on 13 May 1970.  He is a truck driver by occupation.

2The plea to this indictment took place on 12 May of this year.  Ms Fleming appeared for the Commonwealth Director of Public Prosecution, as she does today, and Mr Sturges appeared for Mr Hardy. 

3There were two warrants issued which led to the seizure of the material in this matter.  First was on 18 May 2020 at his work at a company called Kitco in Sunshine West and the second on 19 May 2020 to a private Myrtleford storage facility.  As a result of that work completed by police, on 12 May 2020 Mr Hardy pleaded guilty to two charges in the Commonwealth indictment, which has been signed by the appropriate Commonwealth officer on 13 April 2021.

4The first of those charges is laid under s474.19(1) of the Criminal Code (Cth), which is to use a carriage service to access child pornography material.  The period involved in that accessing was able to be ascertained by an examination of the digital equipment held by Mr Hardy, being from 22 February 2016 to 28 August 2016, a period of 6 months.  The details are set out at Exhibit A of the Prosecution Opening dated 13 April 2021.

5The download was from a commercial child exploitation website known as ‘Website M’, analysis showed that Mr Hardy had made 14 purchases of child abuse material.  The samples were tendered as part of Annexure A to Exhibit A and remarkably those purchases, which apparently were able to be encrypted, were made in his name and with his credit card.  I will have more to say about that in due course.

6The second charge, Charge 2 on the indictment, is the charge under s.474.22A(1) of the Criminal Code (Cth) of possess child abuse material.  The maximum penalty imposed pursuant to that particular provision of the Code is 15 years imprisonment.  This is a charge upon a date particular, being 18 May 2020, when Mr Hardy was arrested.  The precise details are set out in paragraph 13 of Exhibit A, again to which I will come to in due course.

7The record of interview with Mr Hardy suggested that the material found to be stored on his facilities as at May 2020 had been downloaded over a period of 12 months and had cost him between five and six thousand in purchase fees.  I find that hard to accept. The volume that I am about to refer to would indicate perhaps that a far higher sum was spent by Mr Hardy and indeed a longer period taken to download; however, we are only interested in the material that he was in possession of on 18 May 2020.

8Mr Hardy has been in custody since he was arrested and, as has been agreed today between counsel, the pre‑sentence detention is 402 days.  In addition and unnecessarily a complication, there is an extra charge of commit an indictable offence under the State Bail Act, s.30B, for which a maximum penalty is one of three months.

9Mr Hardy comes before the Court with no relevant priors.  He has a number of driving matters which come about no doubt from his occupation as a truck driver.  He was some considerable period ago fined for an assault charge in 1997; however, at no stage has he ever been gaoled before in his life, as I said, now being aged 51.

10Given the serious nature of these charges, there was no issue from Mr Sturges that the appropriate penalty must involve imprisonment with a period of parole.  I refer in that regard to the written submissions tendered as Exhibit 1 by Mr Sturges on behalf of Mr Hardy and in particular [3] thereof.

11What stands out in this particular criminality is the number of images and their type.  In particular, coming to Charge 2, that is the charge of being in possession, I do not think in my time on this Court I have ever had to deal with such a vast number of images.  One indeed may well tend to get distracted if one compares the images between Charge 1 and Charge 2.  It is necessary to bear in mind that these charges are separate charges, and on the principles set out in DPP (Cth) vGarside [2016] VSCA 74, [65] - [66], because of their particular separate nature, there is a need for cumulation.

12Charge 1 relates to the obtaining and downloading from a commercial child exploitation site.  That such a site exists in itself is quite revolting.  As charged, there was 14 downloads over a period of six months.  The website is labelled M.  One downloads from that website for a fee.  The material that is then sent is apparently compressed and can be encrypted. 

13[10] of Exhibit A is a summation of the material that was purchased. It is much less than the vast number that relates to Charge 2, hence why I said that one cannot get distracted, however it still involves 37,000 images. 

14[11] of Exhibit A notes that the material purchased includes at least three category 4 videos of an hour in duration, which depicted an adult male engaged in oral sexual intercourse and then progressing to penile-vaginal intercourse with a pre-pubescent girl aged nine years of age, as well as five category 5 videos with a child aged between five and six, as I have said, wearing a blindfold and participating in oral sex.

15Insofar as that material is concerned, more specific examples, as I have said, are set out in Annexure A.  I will not go into those more specific details.  The analysis in Annexure A is dramatic itself, but gives not only samples of individual videos but samples of the images.  As I say, they are dramatic in themselves and have been appropriately described.  The analysis [10], upon the relevant scale, shows that of the 37,263 images 36,531 were unique. 

16Coming then to Charge 2 we have an amazing vast number of stored images as detailed in [13]. The total figure is 410,867 images. Of those, 62 per cent were unique, being 256,394. In regard to the categorisation of abuse of young children on the scale used, known as the ACESC scale, predominantly 92.61 per cent of the material downloaded involved children in no actual sexual activity, but of course involves them in degrading and abusive situations. It is easy to get distracted when you have got a total figure of that degree.

17There are also to be noted as to level 3, that is involving an adult with a young child but not penetrative, 10,000 images in his possession, and in regard to level  four 9,800 images involving a young child and adults with penetration.  Finally there are 1,400 images involving a child in a situation that relates to either sadism, bestiality of child abuse.  Such gives an indication of the volume and type of material we are dealing with here.

18Given the views expressed in the Court of Appeal by Priest JA, I do not intend to take the matter of their analysis any further, in the sense that I did not view the material.  I have unfortunately over a long period had to at times view such material.  The analysis and the annexure provided by the Director was sufficient in the circumstances. It was not suggested by Counsel that I should personally view this material to better understand, what is detailed in Annexure A, the crimes for which Mr Hardy comes before the Court.

General Principles

19Coming then to general principles in regard to these crimes, given the penalty involved for both charges they are inherently serious.  I appreciate the principles put to me in Exhibit B by the Commonwealth, that is the Commonwealth's written submission as to sentencing, and in particular the cases provided, of which each assists this Court in the process of instinctive synthesis.  It seemed to me the most close by way of analysis was R v Martin [2014] NSWCCA 283. I was also given the cases of R v De Leeuw [2015] NSWCCA 183 and Cluett v The Queen [2019] WASCA 111. As I have said, each of those cases assist as yardsticks in the instinctive process involved in this sentence.

20Importantly the principles are set out in DPP (Cth) vGarside [2016] VSCA 74 by the Court of Appeal as it then was, comprising Redlich, Priest and Beach JJA, at the time Justice Beach being an Acting Justice of the Court of Appeal. Given the ease and access of this material from the internet, as set out in [20], general deterrence is paramount, as was said in quoting from the case of D'Alessandro (2010) 26 VR 46 [21], the -

'…prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration'.

21These matters continue to come before this Court.  I was indeed the trial judge in Garside. That matter had been heard before me in February 2016 and at the time I was concerned about the ease at which people are able to access this vile material.  As I said, remarkably, albeit that this site specialises in child abuse of children, Mr Hardy was able to access it in his own name and with his own credit card.

22It is known to the Court that access to pornography generally is able to be achieved by persons under the age of 18 without any requirements of identification and here in these circumstances we have Mr Hardy being able to access this vile material.  I do not seek in any way to criticise steps taken by the Government, but what must be and should have been done over many years is to stop or impede such access.  Steps should indeed be taken, and I have said this on a number of occasions, to try to tackle the providers and those who provide platforms for this material.

23I noticed in the Fourth Estate a story since this plea was heard.  It was an upload from the press, and it related to an uncovering by German police of the world's largest underground website for child pornography, disclosing more than 400,000 users.  It was described as one of the biggest “dark net” child pornography platforms in the world. It seems to me that this process coordinated by what is known as Europol and supported by law enforcement in the Netherlands, Sweden, United States and Canada is the type of activity that should be undertaken to stop people being able to access these “dark net” sites, which are invisible to most internet users and can often only be accessed with encryption technology.  It does not seem to be the position, as best as I understand it, that there was any encryption technology needed by Mr Hardy to access this particular site.  All that I am saying is the more than can be done to tackle this, the better.  And can I endorse any action that has been taken by Government and suggest that intense action should be taken to make it illegal for providers of these platforms to allow people to use such platforms to download this vile material.

24Returning to  Garside, I want to come to other principles that were referred to in D'Alessandro, which are set out by the Court of Appeal at [24] of that decision. The reference to D'Alessandro is the reference to a number of principles that were set out in that decision at [21]. They relate firstly to the problem with child pornography being an international problem; the 'prevalence and easy availability of it'; that those who are inclined 'are encouraged by the fact that there is a market for it'.

25I make the point that in these two particular crimes there is no indication at all that Mr Hardy was downloading for any commercial purpose or for any purpose unrelated to his own enjoyment.

26The Court of Appeal spoke of the objective seriousness of those offences, as I have stressed, brought about by the nature and content of such material, the age of the children, the type of sexual activity portrayed and of course, which applies in this case, the number of images downloaded.

27Looking at Mr Hardy’s crimes objectively, the only positives that can be said, in the sense that the crimes are not so aggravated, was that the downloads appear to be for Mr Hardy’s own enjoyment, if one can put it that way, and that there is no evidence of the storage being for the purpose of any ongoing sale, transfer or profit.

28As has been recognised by Mr Sturges, and was said in Garside at [62], there must be, given the serious nature of these offences, one voice expressed by the authorities 'that a term of immediate imprisonment will ordinarily be expected for such offending'. There is no submission otherwise by Mr Sturges.

29I also note from [68] the reference to R v Porte [2015] NSWCCA 174, where there is citation from Zarb, where the Court talks of 'the classification of material', being one of the issues in Garside where you have got predominantly level 1 material, which in regard to the possession charge is the situation with Mr Hardy. 

30In Porte, Johnson J said at [77]:

'The classification of material in accordance with [they were using] the CETS scale assists the process of assessment of the objective seriousness of an offence.  Although categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted in the images, it should not be assumed that category 1 material is mild in content.  Despite being the lowest classification level [and this relates to the majority in regard to Charge 2 here], category 1 material itself is capable of possessing significant gravity'.

31There was of course no submission otherwise by counsel.  Hence on the basis of those principles both offences here are objectively serious, and illustrate the concern of Parliament and the community about the ability to access such sites.

Plea of Mr Laurence Hardy

32The plea was conducted, and Exhibit 1 was tendered.  The matter raised by Mr Hardy in the field interview, in particular at paragraph 1, his record of interview and in the Psychiatric report of Dr Pandurangi, Exhibit 2 was that this material had been accessed and downloaded by him as some type of research related to problems of his then girlfriend, and to assist her. I took the view at the time, given the volume of images involved, that such excuse was farcical.  I indicated to Mr Sturges that if I was to change my view, that I would need to hear evidence.  It was indicated by Mr Sturges that no such evidence was to be led.

33The other matter concerns the proposition from Dr Pandurangi, in particular at [51] of Exhibit 2 and [7] of Exhibit 3, but [51] is sufficient, Dr Pandurangi said this:

'It is understandable that the nature and quality of offences Mr Hardy is currently charged with raises the suspicion of deviant sexual arousal to prepubescent children; however, he has consistently denied this at our interview and at the police interview'.

34As far as I am concerned, albeit that Mr Hardy has no priors for such matters, I have no doubt that he does have a sexual interest in prepubescent children and that was the reason why he downloaded and possessed this material.

35In regard to Mr Hardy’s general medical state I refer also to Exhibit 2, at [47], where it is noted that he does not present with persistent and pervasive difficulties as to personality function; at [48], there is no history which suggests that he suffers from major mental illness, nor does he have any intellectual disability. 

36I accept on the plea made by Mr Sturges that it is appropriate by way of mitigation to take into account the discount, and such discount will be given by me, for the plea.  As I say, Mr Sturges' tendered written material on the plea, Exhibit 1, and spoke to that. 

37It is agreed that Mr Hardy has by way of pre‑sentence detention served 402 days, I accept the vicissitudes that come with that by being in prison.  On remand he has been subject to limitations of visits, to lockdowns and of course to a lack of services to assist him and no doubt an ongoing risk of COVID-19 breaking out in the prisons.  Fortunately for us all that has not happened.

38In this sentence I also take into account the enhanced utility of this plea as set out by the Court of Appeal most recently in Worboyes [2021] VSCA 169, [39]. When the justice system and its operation is so limited, hopefully not forever, the Court of Appeal has detailed that the discount offered for a plea, must be enhanced by the utility of such a plea in these times. I take that into account and effect such enhanced discount.

39One of the aspects, as put by Mr Sturges, is that we have before us, Mr Hardy at the age of 51 with no priors of this type at all.  The analysis of the material, as I have already indicated, would show that he does have priors, but none of this type.  Most importantly he has never been placed in gaol before. 

40I do not lose sight of the need for this sentence pursuant to the provisions of the Crimes Act (Cth) s.16A(2AAA) to take into account the aspects in this sentence which would lead to his rehabilitation.  In that regard I note from Dr Pandurangi’s opinion, Exhibit 3, paragraph 14, the following:

'The likely referral pathway for Mr Hardy would be through the Corrections Victoria forensic intervention service to determine his suitability for these programs'. 

41The report goes on to talk about the manner in which Mr Hardy should be catered for by such service and it seems the best I can do to comply with the requirements of the Act is to send this report, and in particular the reference to paragraph 14, to the authorities to take steps as recommended.

42As I said, I take into his account Mr Hardy’s prior good character. I note the comments made by various Courts about the role of good character in these cases; however, he is still entitled to put before the Court his good character and the limited convictions he has and indeed the fact that he has no relevant priors. I take into account the principle of parsimony and in particular the provisions set out in s.5(4) of the Victorian Sentencing Act.  I also take into account the principles of totality and the principles put to me and detailed in the submission Exhibit B by the prosecutor under s.16A of the Crimes Act (Cth).

43I also note, as clarified today, the cooperation shown whereby Mr Hardy allowed the police, by providing his passwords, to obtain the material that has now been come to be used against him.

44Acknowledging all of those factors put to me by Mr Sturges, they must of course be balanced against the principles I have earlier expressed as being relevant in these cases.  Taking all matters into account, which I have rehearsed, I  sentence Mr Hardy as follows.

Sentence

45Mr Hardy, you will be convicted of both charges in the indictment and the summary charge. In regard to the first charge in the indictment under s474.19(1) of the Criminal Code you will be sentenced to a period of imprisonment of four years. 

46In regard to Charge 2, that is the offence under 474.22A(1), that is of possessing child abuse material, you will be sentenced to a period of imprisonment of five years.

47It is my intent that nine months of the sentence in regard to Charge 1 will be cumulated upon the sentence in regard to Charge 2 making a total aggregate period of imprisonment for both those counts in the indictment of five years and nine months. 

48I am required by way of the principles as set out by the Court of Appeal of Swingler [2017] VSCA 305, because of the complication of having both a Commonwealth sentence and a State sentence, to adopt the policy recommended in that case, to provide and determine the State sentence first and add the Commonwealth sentences thereafter. Madam Prosecutor, it seems to me a particularly unnecessary complication in this case, but there we are.

49For the Summary offence 4 I will fine Mr Hardy five penalty units.

50HIS HONOUR:  Then starting Charge 2 today, that's 24 June for five years, which would therefore finish on 24 June 2026.  And to add nine months to that, that would take us to March 2027 and coming back four years from that would mean that March 2023, that is 24 March, is when we start the four years in regard to Charge 1.  Then there's no issue about me then starting the non-parole period, as I've indicated, as of today of three years and nine months. 

51MS FLEMING:  Yes, thank you, Your Honour.

52HIS HONOUR:  And then I make the declaration as to the 402.  Mr Hardy, I am sorry for this.  It is never easy on these Commonwealth matters, certainly not easy for you getting the sentence, but I am sorry that we are messing around so much, or I am.

53OFFENDER:  It's understandable.

54HIS HONOUR:  Yes.  In the circumstances I will pronounce this again and I will do it this way.  On the State charge Mr Hardy will be convicted of the breach of bail and fined five penalty units.  I will give a stay in regard to that payment of five years.

55In regard to Charge 2 on the indictment, I impose a period of imprisonment of five years, beginning today.  In regard to Charge 1 on the indictment the period imposed by way of gaol in that matter is four years, which will begin on 24 March 2023, thereby producing a total aggregate of five years and nine months, for which pursuant to s.19AB(1) I impose a non-parole period of three years and nine months. 

56HIS HONOUR:  How are you going, Mr Sturges, on the maths?

57MR STURGES:  No, the maths seem accurate. 

58HIS HONOUR:  I declare the 402 days to be pre‑sentence detention and service of this sentence and that such declaration be recorded in the records of the Court.

59MR STURGES: Pursuant to s18 of the Sentencing Act. That's s18 of the Sentencing Act, Your Honour.  That's what Your Honour's really - well, that's what Your Honour's referring to now, giving effect to the pre‑sentence detention, as you would under the Victorian Act.

60HIS HONOUR:  No, no, I'm referring to 16E(2) of the Commonwealth Crimes Act, which says:

'The law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence'.

61So that, by declaring that, that comes into account on the non-parole period and the sentence.

62MR STURGES:  Thank you, Your Honour.

63HIS HONOUR:  All right.  So we'll go back over it again. 

64So formally then, Mr Hardy, you will be sentenced on the State charge to five penalty units, convicted and sentenced, and I give a stay of five years.  In regard to the indictment, on Charge 2, you will be sentenced to a period of imprisonment of five years to begin today. In regard to Charge 1 on the indictment you will be sentenced to a period of imprisonment of four years to begin on 24 March 2023, making an aggregate sentence of five years and nine months.

65I order that you not be eligible for parole until you have served a period of imprisonment of three years and nine months and I declare pursuant to s16E(2) that the period that you have served to date, being 402 days not counting today, be deemed service of this sentence. 

66MR STURGES:  As Your Honour pleases.

67HIS HONOUR:  I make the declaration under s.6AAA that had you not pleaded guilty you would have been sentenced to not an aggregate period of five years and nine months with three years and nine months as the minimum period, but to an aggregate sentence of seven years with four and a half years as a minimum sentence.

68Yes, anything else I have to clarify?

69COUNSEL:  No, thank you, Your Honour.

70HIS HONOUR:  Thank you.  Thank you, Mr Sturges.

71MR STURGES:  As Your Honour pleases.

72HIS HONOUR:  And thank you, Madam Prosecutor.

73MS FLEMING:  May it please Your Honour.

74HIS HONOUR:  Yes, good luck, Mr Hardy.  Yes.

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