CDirector of Public Prosecutions v Henderson
[2017] VCC 1045
•3 August 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01942
CR-16-01943
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW DAVID HENDERSON |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 & 16 February 2017; 18 May 2017 |
| DATE OF SENTENCE: | 3 August 2017 |
| CASE MAY BE CITED AS: | CDPP v Henderson |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1045 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms L. Skoblar | CDPP |
| For the Accused | Ms C. Woodward | Victoria Legal Aid |
HIS HONOUR:
1
Andrew Henderson, you have pleaded guilty to one charge of possess child pornography material with the intention of committing an offence against
sub-s.474.19 of the Criminal Code (Cth); one charge of use carriage service to promote child pornography material; one charge of use a carriage service to make available child pornography material; one charge of use carriage service to access child pornography material; one charge of furnish false information; three charges of failing to comply with reporting obligations; one charge of engage in child-related employment; and one related summary charge of contravene a conduct condition of bail. The maximum penalties for these offences are as follows:
· Possess child pornography material with the intention of committing an offence against sub-s.474.19 of the Criminal Code (Cth), 15 years' imprisonment;
· Use carriage service to promote child pornography material, 15 years' imprisonment;
·
Use a carriage service to make available child pornography material,
15 years' imprisonment;
· Use carriage service to access child pornography material, 15 years' imprisonment;
· Furnish false information, two years' imprisonment;
· Fail to comply with reporting obligations, two years' imprisonment;
· Engage in child-related employment, two years' imprisonment; and
· Contravene a conduct condition of bail, 30 penalty units or three months' imprisonment.
2 The circumstances of your offending are set out in the document headed “Prosecution opening”, which the prosecutor read in open court. It has been tendered as Exhibit A. It is unnecessary for me to repeat the whole summary.
3
The offending effectively falls into two periods. The first period, between
20 January 2015 and 4 December 2015, involves Charges 1, 2 and 3 on the indictment. The remaining charges occur during the second period, between
4 March 2016 and 23 June 2016.
Charges 1, 2 and 3.
4
A search warrant was executed on your property in Hoppers Crossing on
4 December 2015. Computer equipment was seized and you participated in
a record of interview, where you made significant admissions about possession of child pornography and the use of your "One Drive" account.
5 A total of 73,755 child pornography images and video files were located. This included 21,207 images and files that were found in your "One Drive" account.
6 The police classified this material into six categories.
7 Category 1 involved images and videos of children with no sexual activity. There were 57,500 images and 735 videos in this category.
8 Category 2 involved images and videos depicting non-penetrative sexual activity between children or solo masturbation by a child. There were 4,079 images and 103 videos in this category.
9 Category 3 involved images and videos depicting non-penetrative sexual activity between adults and children. There were 3,227 images and 33 videos in this category.
10 Category 4 involved images depicting penetrative sexual activity between children and adults. There were 7,362 images and 245 videos in this category.
11 Category 5 involved images and videos depicting sadism, cruelty or bestiality with children. There were 462 images and two videos in this category.
12 Category 6 involved anime, cartoons, comics and drawings depicting children in sexual poses or activity. There were seven images in this category.
13 Charge 1 is put on the basis that you possessed all of the child pornography for the purposes of accessing, transmitting, making available and soliciting such material.
14 Charge 2 is put on the basis that in order to facilitate a trade in the possessed material, you promoted it to other users via email.
15 Charge 3 is put on the basis that the 21,207 images and files in your "One Drive" account were made available to others to facilitate the trade in child pornography.
16 There are several reasons why this offending is, as your counsel conceded, extremely serious offending.
17 First, there is the sheer volume of material. 73,755 child pornography images and video files were located. Very few cases come before the courts involving such a large amount of material.
18 Secondly, there is the lengthy duration of the offending from 20 January 2015 to 4 December 2015.
19 Thirdly, there is the very grave nature of the violence depicted in some of the material. More than ten per cent of the images and videos, 8,071, were in Categories 4 and 5. I did not view a sample of these images, however, I was provided with a summary of some of the images represented within those categories. I do not intend to repeat what was outlined in that summary. It is sufficient to say that you were in possession of a large number of images of children who were subject to the most shocking, brutal and terrible violence.
20 Next, there is your involvement in a sophisticated system that enabled you to share and swap child pornography. Whilst you were not involved in distributing material for monetary gain, you were actively engaged with other like-minded individuals in the trading of images and videos. You told the police that your preference was for images of boys and girls posing, who were over five years of age, but under ten. However, that did not stop you promoting the full range of materials in your possession. You set up a "One Drive" account which was effectively a “filing cabinet in the cloud space”, to enable the trading to take place. The "One Drive" account contained 21,207 child pornography images and videos. You admitted that you used what you said were the "hard core" material in your possession as currency, to get what you wanted. This
"hard-core" material involved children ranging in ages from three to 11 or 12 and covered, “Sexual penetration and oral sex and some tying up as well.”
21 Finally, in amassing such a large collection of materials, in promoting those materials and in trading in some of those materials, you were complicit in the most appalling exploitation of thousands of children.
22 With this offending, general deterrence is a paramount sentencing consideration. The principles of just punishment and denunciation are also highly relevant.
Charges 4 to 9 and the related summary offence
23
After you were arrested for the offending that constitutes Charges 1, 2 and 3 on the indictment, you were released on bail with a residential condition and
a condition that you not own or use an internet capable device. You entered this undertaking of bail without telling the police about your Samsung Galaxy S6 phone or SkyDrive account. You had acquired the Samsung phone in November 2015.
24 On 23 June 2016, the police executed a second search warrant on your property. The police seized a Samsung Galaxy S6 phone, a desktop tower and a cheque for $266 for the iHeart Church.
25 When police analysed the seized devices, they discovered a total of 334 images of child pornography. They located 16 files on the desktop computer and 318 files that would have been accessible to you via your "SkyDrive" account, using your Samsung Galaxy internet connected phone. Of these images, 307 were Category 1 images and 18 were Category 4 images.
26 When interviewed about this offending, you told the police that as your Samsung phone was not seized on 4 December 2015, you continued to use it. You stated that you started using it shortly after your arrest and that you understood that you were in contravention of your bail. You said you found it difficult to continue, "Working and living without it.” You thought the bail condition was excessive and that you would not be able to get it changed.
27 You admitted using the SkyDrive account to access child pornography on another sharing site. You told the police you did so only to delete images. However, you also admitted viewing one image from the "One Drive" account and after performing a sexual act, deleting the folder containing the image.
28 It is an aggravating factor that Charge 4 occurs after your apprehension for Charges 1, 2 and 3. It is further offending that involves accessing child pornography. You maintain that you accessed material to delete it. In doing so, you acted to try and remove relevant evidence. On your own admission, you accessed one file for sexual purposes. You committed this offence whilst you were on bail and in direct contravention of a relevant bail condition.
29 The remaining charges relate to five breaches of the Sex Offender RegistrationAct 2004. (SORA)
30 On 20 July 2006, you were sentenced in this court to a term of five years' and six months' imprisonment for two counts of sexual penetration of a child under 16; two counts of indecent act with a child under 16; and knowingly possess child pornography. The court fixed a non-parole period of three years. You were placed on the Sex Offenders Register and required to comply with the Act’s reporting requirements for life. You were obliged to disclose changes in your circumstances to the Victoria Police within seven days, including changes relating to internet use, including registration with social networking sites, email addresses and usernames, employment and contact with children.
31 Three of the breaches involve failing to comply with reporting obligations, in that you failed to disclose:
· You had attended a youth camp run by iHeart Church, which had also been attend by 32 children under 18;
· Your affiliation with the youth club of iHeart Church; and
· The creation of Facebook "What’s App" and "Hay Day" accounts.
32 Count 5 relates to furnishing false information when, during your annual interview on 22 March 2016, you advised that you were not using internet capable devices. This was untrue.
33 Count 8 relates to you engaging in child related employment with the iHeart Church.
34
You became involved with the iHeart Church through a friend of yours, Noel Lloyd. You had a common interest in entertainment production. He provided
a reference, indicating that he has known you since 2004. He was aware of your conviction for sexual offending in 2006 and that you had served time in prison. You did not tell him you were on bail for fresh offending. He believed that you had not re-offended for over seven years and therefore that you had your offending under control. He was aware of your skill as a sound recorder and he asked you to assist him at a camp being run by the iHeart Church in April 2016. Not surprisingly, Mr Lloyd states that if he had known about the fresh charges, he would not have let you come to the camp.
35 After attending the camp, you continued to remain involved with the iHeart Church. You attended youth services at the church between 28 May 2016 and 18 June 2016 and assisted with sound recording those events. You did not tell anyone from the church about your prior convictions or the pending charges.
36 The purpose of the Sex Offenders Registration Act 2004, is set out in s.1(1) of the Act. The relevant part of the section says,
“The purpose of this Act is, (a) to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time, (i) to reduce the likelihood that they will re-offend, and (ii) to facilitate the investigation and production of any future offences they may commit; (b) to prevent registered sex offenders working in child-related employment.”
37 The prosecutor submitted that in committing these five offences against the Act, you engaged in conduct that undermined these legislative purposes of the Act. I agree.
38 The final offence that I refer to is the related summary offence of contravention of a condition of your bail. The charge is dated 21 June 2016. This is the date computer forensic analysis identified that you had uploaded a file from the iHeart Church onto your Facebook account.
Prior Criminal History
39 You do have relevant prior convictions.
40 On 16 March 1998, you were convicted and fined in the Magistrates’ Court for offences of indecent act in the presence of a child under 16 and fail to answer bail.
41 I have already referred to your appearance in this court in 2006. On that date, you received a lengthy term of imprisonment for sexual offending. I was told by your counsel that that offending occurred in 2000 and that the victim made disclosures to the police in 2003. One of the charges dealt with in 2006 was knowingly possess child pornography, for which a sentence of 12 months' imprisonment was imposed.
42 On 10 October 2012, you were fined in the Magistrates' Court for failing to report a change of internet provider.
43 You are not, of course, to be punished for your prior convictions. However, your prior history is relevant to the application of the principle of specific deterrence. Your prior history is also relevant in an assessing your prospects of rehabilitation.
Background
44 You are 44 years old.
45 You recall your early childhood as a happy and idyllic time, until the moment when your father suddenly, and from your perspective, inexplicably left the family home. You were eight years old and his departure had a profound impact on you, leaving you distressed and troubled. Your behaviour was such that your mother sought assistance from the Travencore Child and Adolescent Mental Health Service Family Unit. You told Dr Patel, a psychiatrist from Forensicare who assessed you in May 2017, that whilst you recovered from this loss, you believed that it left you with an inability to have a meaningful relationship with adults.
46
You told Dr Patel that when you were ten years of age, your 15-year-old
step-brother initiated you into sexual activity. The behaviour of your
step-brother was not perceived by you as an abuse, but rather as a “consensual relationship.”
47 Your schooling was unsettled. You attended schools in Hoppers Crossing and Werribee, finishing your secondary schooling at Lyndall Hall Community School. You describe being lonely and isolated at school with few friends.
48 At the age of 16 or 17, you were first shown online child pornography by an older male. You told Dr Patel that throughout your adult life, you have, “lived with a high level of sexual arousal and predominantly thoughts of a paedophilic nature.” You also told Dr Patel that your, “preferred sexual partner in fantasy was a child of either gender, under the age of ten.”
49 After leaving school, you obtained an apprenticeship as an electrical fitter with Vic Rail. You were retrenched when you were 25. Since then you have worked variously as a courier or technician.
50 You were in custody from July 2006 until early-2010.
51
Upon your release from prison, you went to live with your mother and
step-father at Hoppers Crossing. In 2011, they relocated to live with your brother and his family. Your counsel advised that you were left alone “with minimal social contact or external activities.” You were socially isolated
52 In 2009, you had participated in a Sex Offender Program at Margoneet Prison as a requisite condition to securing parole. Dr Dion Gee, a forensic psychologist who assessed you on 3 February 2017, states in his report that your participation in that program had, in his opinion, minimal impact “on curbing your deviant sexual interests”, or providing you with “the skills necessary to effectively mitigate against a relapse into aberrant sexual behaviour.” You told Dr Gee that you did not complete the program successfully because adult rapists and child sex offenders were in the same group and you were intimidated and threatened.
53
Whilst undergoing that sentence, you were commenced on the drug citalopram. In his report, Dr Patel explains that this is a serotonergic medication with
anti-depressant properties that is also used to diminish libido and deviant sexual arousal. You told Dr Patel that the use of this drug had an “almost complete resolution of paedophilic thinking” and that there was a marked reduction in your arousal. You remained on that drug after your release until late-2014. You told Dr Patel that you stopped using the medication when you were going through a period of life stress and low mood. You felt that you wanted to escape your low mood and the emotional numbing from the medication. Dr Patel says that when questioned further on this, you acknowledged that your desire for stopping the medication was in the hope that you would “return to feeling more sexually aroused and so be able to experience a state of pleasure.”
54 Dr Patel describes what then happened.
“
Immediately after ceasing the medication, he began to experience
a return of his high sexual arousal and paedophilic thinking.
Mr Henderson stated that he was aware of the potential serious consequences of re-engaging in looking at child pornography, but he felt that it was something he needed to do, in order to feel he could keep going. He was concerned that he could again offend against
a child and so made efforts to avoid being anywhere at times during the day when they may be around.”
55 During your current period of remand, you have been prescribed an alternative drug, sertraline. You told Dr Patel that since you have been taking this drug, you have had almost total resolution of deviant sexual thinking and arousal to minors.
Prospects for rehabilitation
56 For a number of reasons, I am extremely guarded about your prospects for rehabilitation.
57 First, both Dr Gee and Dr Patel agree that you have a clear paedophilic disorder.
58 Secondly, you criminal history shows the effect of that disorder on your behaviour.
59 Thirdly, after being charged and bailed on the pornography offences, you committed further offences whilst on bail and breached a number of provisions of the Sex Offenders Registration Act. In relation to the latter point, I note that in October 2010, you were convicted and fined in the Magistrates Court for failing to report a change of internet service provider.
60 Finally, whilst it seems that you are currently receiving a benefit to your mood and sexual arousal from the use of your current medication, the benefit only continues whilst you remain compliant with your medication. After your release from prison in 2010, you remained compliant with your medication for a number of years. In a period of stress and low mood, you stopped the medication and the offending resumed. Dr Patel said this in his report,
“Mr Henderson appears to believe that the use of medication on an ongoing basis is sufficient to manage any paedophilic interest and thus risk to children. Mr Henderson does not appear to have developed a clear sense of how he could manage himself when under stress and feeling depressed, so that he does not feel tempted to again cease his medication, as he did before this offending.”
Dr Patel expresses the opinion, which I accept, that while your risk would have to be considered reasonably contained on medication, if you were to cease your treatment, there is a significant risk that you would engage in further on-line offences.
Matters in mitigation
61 I now move to matters in mitigation.
62 After your arrest on 4 December 2015, the police interviewed you. You made significant admissions and signed an authority to enable the investigators to gather further information. This is to your credit. However, in assessing this matter, I note that you were not completely frank with the police. You failed to disclose your possession of the Samsung phone or advise them of the existence of the SkyDrive Account.
63
The most significant matter in mitigation is your early plea of guilty. Your plea of guilty, in conjunction with the admissions you made during the interview in December 2015, demonstrate an acceptance of responsibility. It also shows
a willingness to facilitate the course of justice, by avoiding the cost and expense associated with a criminal trial. The prosecution concede that there is
a significant utilitarian benefit in a plea in this case.
64
Your plea and co-operation is also evidence of a level of contrition. The assessment of the depth of contrition is often a complex task. Although you made significant admissions to the police in December 2015 and indicated
a strong wish to make change and not re-offend, you did not make a complete disclosure in the interview and you re-offended on bail.
65 In late-2016, after you had been remanded, you commenced seeing Dr Andrew Carroll, consultant forensic psychiatrist to Hopkins Correctional Centre. He provided a brief written report, in which he stated that you had consistently expressed distress at your paedophilic urges and that you were engaging well and appeared keen for mental health input and for assistance with your disorder of sexual preference. However, Dr Gee, who conducted a comprehensive assessment on 3 February 2017, says this in his report.
“Asked if there was anything wrong with his conduct, Mr Henderson presented with a somewhat conflicted response. On the one hand he clearly articulated that his actions were against the law, however, also advanced numerous distortions that supported the perpetuation of child abuse, many of which appeared imbedded within his own abuse experiences and those post hoc rationalisations used to make sense of his past sexual abuse, both as a victim and as a perpetrator. “
66 Whilst I am prepared to find that your plea is indicative of some remorse, the remorse is at a basic level and it is compromised by your lack of insight into the seriousness of the offending and the harm it causes.
Totality
67 There is, as conceded by the prosecutor, a significant level of overlap in the first three offences on the indictment and I must recognise that in the orders I make. However, Charge 4 is separate and discreet offence, as are the State offences. Even so, orders for cumulation are subject to the totality requirement and I must ensure that the total effective sentence is proportionate to the sum total of your offending. I must ensure that I do not impose a sentence that is crushing.
Sentences
68 Mr Henderson, would you please stand.
69 You are convicted on all charges and sentenced to the following periods of imprisonment:
70 Charge 1 – six years;
71 Charge 2 – five years;
72 Charge 3 – five years;
73 Charge 4 – 21 months;
74 Charge 5 - four months;
75 Charges 6, 7 and 9 – an aggregate term of six months;
76 Charge 8 – three months.
77 The related summary offence – one month.
78 I make the following orders on the State offences:
79 I order that two months of the sentence on Charge 5 and one month of the sentence of Charge 8, be served cumulatively on the aggregate sentence imposed on Charges 6, 7 and 9. This makes a total sentence on the State matters of nine months' imprisonment. This sentence is to commence immediately.
80 I make the following orders on the Commonwealth offences:
81 The sentence on Charge 1 commences six months after the commencement of the sentence for the State matters;
82 The sentence on Charge 2 commences one year and six months after the commencement of the sentence on Charge 1;
83 The sentence on Charge 3 commences six months after the commencement of the sentence on Charge 2;
84 The sentence on Charge 4 commences four years and six months after the commencement of the sentence on Charge 3.
85 This makes a total sentence of imprisonment on the Commonwealth offences of eight years and three months. I fix a minimum term of six years before you will be eligible for release on parole on the Commonwealth offences.
86 This results in an overall total effective sentence on all matters of eight years and nine months. You will effectively be eligible for release on parole after serving six years and six months.
87 Obviously, I have determined that I had no alternative than to impose a term of imprisonment in your case and I direct that my reasons for so finding be entered in the records of the court, pursuant to s.17(2)(b) of the Commonwealth Crimes Act 1914.
88 I declare that you have served 406 days in custody and that you have already served those days in relation to this sentence.
89 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence on the State matters of 15 months' imprisonment. I would also have sentenced you to a total term of 11 years' imprisonment, with a minimum term of eight years and six months on the Commonwealth matters, the sentence on the Commonwealth matters to commence nine months after the sentence on the State matters.
90 The first four charges on the indictment attract the provisions of the Sex Offenders Registration Act 2004 and you will be required to comply with the reporting obligations of that Act for the remainder of your life. My Associate will provide you with a document shortly which details your obligations.
91 You can be seated there.
92
Now, for the benefit of counsel, what I am going to do is, hand you both
a summary of the sentences just announced, because I know judges often fall foul of the sentencing requirements in State and Commonwealth matters. I will give you both an opportunity to look at this document, to make sure that the sentences I have announced are correct. And I am happy to leave the Bench if you need that time.
93 MR RIORDAN: I would be grateful for some more time to go through the arithmetic.
94
HIS HONOUR: Yes. I have clearly stated what my intention is and
I hope that this order accurately reflects that, but I know you will need some time to study it, so I will adjourn until a quarter to 12, would that be - - -
95 MR RIORDAN: Yes, that would be - - -
96
HIS HONOUR: Would that be appropriate? So, Mr Henderson, you will go back downstairs now and we will bring you back up at a quarter to 12, because
I just want to make sure that your counsel and the prosecutor agree that the sentence I have announced is accurately reflected in the record. And I do not want you to say anything. You can have a talk to Mr Riordan at some stage, if you want him to say something to the court. You will go back downstairs now and we will bring you back up at a quarter to 12.
97 Yes, thank you, I will just leave the Bench.
98 (Short adjournment.)
99 HIS HONOUR: Does it work out?
100 MR RIORDAN: Yes, thank you for that time, Your Honour.
101 HIS HONOUR: Yes.
102 MR RIORDAN: It works out.
103 HIS HONOUR: Yes, all right.
104 Now Mr Henderson has to sign an acknowledgement that he has got the document which details the obligations under the Sex Offenders Registration Act, so my associate will now approach Mr Henderson for that purpose. It might be sensible for you to go with him, Mr Riordan.
105 MR RIORDAN: Thank you, Your Honour.
106 HIS HONOUR: Nothing more?
107 MS SCOBLAR: No, Your Honour.
108 HIS HONOUR: Yes, thank you. Mr Henderson can be removed.
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