CDirector of Public Prosecutions v Hutchison
[2021] VCC 1267
•2 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00474
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ANDREW HUTCHISON |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2021 | |
DATE OF SENTENCE: | 2 September 2021 | |
CASE MAY BE CITED AS: | CDPP v Hutchison | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1267 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Mr M. Keks | Office of Public Prosecutions |
For the Accused | Mr P. Dunn QC | Doogue and George Solicitors |
HER HONOUR:
Circumstances of the Offending
1Andrew Hutchison you have pleaded guilty to two charges of use of a carriage service to access what was initially called child pornography, later child abuse material, and one charge of possession of child abuse material obtained or accessed using a carriage service. The possession charges constitute a continuing course of conduct. Between them they cover a period of more than seven and a half years, from January 2013 to August 2020, the day a warrant was executed at your home. Child abuse material was found on a computer tower and three hard drives in the home you shared with your wife and children. There are two charges because the name of the offence changed in September 2019, substituting the more accurate descriptor child abuse material for the term child pornography which had previously been used. The possession charge, Charge 3, relates to the child abuse material accessed by use of a carriage service, and which was found on the day that your devices were seized, that is 20 August 2020.
2
A staggering amount of child abuse material was accessed and stored by you. Examination of the four devices revealed a total of 317,003 files spread between them. There were over 300,000 images, over 2,000 videos and
28 documents.
3Most of the images and videos (that is just over 300,000 images and just under 1,000 videos) were classified as category 1 using the Australian National Victim Image Library (ANVIL) classification scheme. That is they predominantly depicted prepubescent female children of primary school-age exposing their breasts and genitals or wearing age inappropriate clothing in sexually explicit poses.
4That number, however, should not distract or detract from the considerable number of higher category images also found in your possession. Over 5,000 images and videos were category 2, predominantly depicting prepubescent female children of primary school age engaged in masturbation, including with devices or other sexual activity. Just under 3,000 images and videos were category 3. They predominantly depicted prepubescent female children of primary school age engaged in non-penetrative sexual acts with adult males. For example a partially naked female child touching the penis of a naked adult male. Just over 2,000 images and just under 700 videos were classified as category 4. They depicted prepubescent female children of primary school-age being orally, vaginally and anally penetrated by adult males. 136 images and videos were category 5, which involved sadism, bestiality, humiliation or other child abuse. For example, one showed a girl of about 10 on her hands and knees, wearing a collar and being restrained on a lead by a man, as she is made to raise her leg and urinate. Finally over 650 images, videos and the 28 documents found depicted child abuse in animated or virtual form, that is category 6. For example, there was a virtual depiction of two adult males penetrating the vagina of a girl aged about 10 with their penises.
5You had carefully categorised and labelled the folders and subfolders where you stored the material. The folders generally named the website from which it appears you obtained the material, with subfolders describing a particular child or series of material. You had bookmarked or saved shortcuts to URLs and websites which enabled users to download or locate child abuse material.
6When interviewed during the execution of the warrant, you described your conduct as “a voyeuristic thing” and “a porn addiction gone out of control”. You acknowledged deriving “a sexual thrill” from accessing the material. You also described “a little thrill” from “knowing full well it’s entirely 100% illegal”, and from knowing ”that people’s lives have been ruined as a result of being in those videos”.
7Later that day, in a formal interview you said that the frequency of your accessing the material, and the type of material you had accessed had increased over the years, and had escalated in the months since lockdown. You described the material you had recently been accessing as “actually disgusting”. You told investigators that your preferred age range was girls in their early teens but that other material had been included in the wholesale downloads.
Objective Gravity of the Offending
8One measure of the seriousness of the offending is the maximum penalty, here 15 years' imprisonment for each charge.
9These are very serious examples of very serious offending. Whilst the number of images, the number falling within each ANVIL category, and the duration of the offending are not, in a crude, numerical sense decisive in assessing the objective seriousness, it is clear that the number and nature of the images, and the duration of the offending are relevant to the assessment of the objective gravity of the offending. Whilst the category 1 images and videos are the greatest numerically, to say the number of images in the higher categories is comparatively smaller should not be allowed to obscure the fact the numbers of images and videos in each of the higher ANVIL categories are themselves disturbingly high.
10In Dennis v the Queen, [2017] VSCA 251 the Victorian Court of Appeal said, in respect of charges of accessing and possessing what was then called child pornography:
[64] The assessment of the objective seriousness of the offending the subject of charges 1 and 3 cannot be reduced to a mathematical comparison of the number of pornographic images and videos accessed or possessed by the appellant relative to other cases. It must be assessed having regard to the circumstances of the offending in each case, considered in the light of the sentencing principles applicable to that case as illuminated by authorities such as Garside. The mere fact that the number of images accessed and possessed by the appellant was ‘moderate’ when compared to that of other offenders, as submitted by him, does not automatically mean that his offending cannot be described as ‘very serious’.
[65] “...the Judge was justified in concluding that the offending conduct the subject of charges 1 and 3 was very serious. In relation to both charges, the number of images and videos accessed and possessed by the appellant was large, they included items in each ANVIL category and involved many child victims, including toddlers. The fact that there are other cases where the number of images and videos is far greater and that many more of them may be in the higher ANVIL categories does not mean that the appellant’s offending is not very serious. Rather, it means that the offending in those other cases is more serious than the appellant’s offending and warrants a higher sentence than the sentence imposed on him.”
[67] In relation to charge 1, the period of nearly five years over which the offending extended and the fact that the appellant stored the child pornography material in multiple devices contributed to the objective seriousness of his offending.
11In Dennis the number of images accessed and possessed, although described by the court as ‘large’ was miniscule compared with this case. There, the offender was found in possession of 1,410 images (compared to more than 300,000 here) and 217 videos (compared to more than 2,000 here), falling in the ANVIL categories 1- 4. In your case, you had over 2,000 images and just under 700 videos in category 4 alone. That is images showing pre-pubescent girls being penetrated. Here, in addition just short of 800 images were in the graver categories 5 and 6. In Dennis the period of access charged was shorter, less than 5 years as compared to over 7 and a half here. Finally, it should be noted, that in Dennis' case the maximum penalty for the possession charge was 10 years imprisonment, not 15, as it is here.
12I have been assisted by the table of comparative cases from around the country provided by the Commonwealth, and the further cases provided by Mr Dunn QC as additional comparators. Counsel have advised me they have been unable to find any case approaching the magnitude of child abuse material accessed and stored as is involved in this case. That is, by reference not only to the number of images accessed or possessed, but also their distribution across all ANVIL categories, and the period over which they were accessed. So, whilst the principles relevant to sentencing in other cases are applicable here, the circumstances, and level of seriousness are so different as to make comparison of actual sentences of limited use.
Sentencing principles
13Part 1B of the Commonwealth Crimes Act 1914 (Cth) applies when sentencing for Commonwealth offences. By s16A(1) I am directed to impose a sentence that is of a severity appropriate in all the circumstances of the offence, taking into account the matters listed in s16A(2).
14Mr Dunn QC who appeared for you accepted the correctness of the following propositions applicable to sentencing for offences involving possession of, or using a carriage service to access child abuse material which were set out in the sentencing submissions filed by Mr Keks on behalf of the Commonwealth.
(a) General deterrence is the primary sentencing consideration for offences of this kind, given the prevalence of the offending, the ease of access to such material on the internet, and the difficulties of detection.
(b) There is a paramount public interest in promoting the protection of children. Offences involving child abuse material are not victimless crimes. Children are sexually abused in order to supply the market and the child abuse material is a permanent record of that abuse.
15To those statements of principle extracted from the authorities, I would add the following observations, relevant to this case. The clinical descriptions of the ANVIL categories should not make us forget that in all but the category 6 images and materials, there are real children being violated and abused. By your conduct, in accessing the material, you have fed the market for the making and distribution of child abuse material, encouraged and perpetuated the abuse of the children whose images you derived sexual pleasure from, and which you so meticulously categorised, labelled and filed. It makes little difference in my view, and is no mitigator that you did not pay for any of the material, that you only accessed what was available without payment. If anyone profited from the distribution of the child abuse material, it is unlikely to be the children who were exploited.
16The exploitation of the children does not stop once they are photographed, or filmed. It continues every time someone views the images of them being exploited and degraded, it is a permanent record. The children might grow up, but those images of what happened to them as children remains available, a permanent record of their exploitation. It must be remembered, these victims are children, not adults. They cannot give informed consent to being photographed and filmed in poses that are then captured, distributed and preserved. This is done to them without their consent in circumstances where they have no agency, no capacity to consent, and it can be inferred no responsible adult to protect them from degradation and exploitation. If anyone profits from their exploitation, it is unlikely to be them.
17Mr Dunn QC acknowledged from the outset that a sentence of imprisonment was inevitable, having regard to the nature and extent of the offending, despite the mitigating factors that he relied on.
18Before turning then to your personal circumstances, some general propositions need to be stated. It is clear that the sentence otherwise appropriate must be reduced by reason of your pleas of guilty, and the early stage at which they were indicated. I accept your pleas have utilitarian value and were entered at the earliest opportunity. Having regard to the admissions you made from the time of the execution of the warrant and your conduct since you have been charged, they also provide supporting evidence of remorse and a preparedness to take responsibility for your actions. I accept too, your pleas carry greater weight because of the more onerous conditions of custody as a result of covid 19. Therefore, the weight to be given to your guilty pleas is increased by reason of that. Further, the sentence is to be further reduced from what is otherwise appropriate because of the more onerous conditions likely to exist because of covid 19. That is not only more onerous conditions in custody but the impact on a person and the limited access they have to programs and to family and personal visits. I take all those matters into account and I have given them considerable weight.
Personal Circumstances
19
Turning then to your personal circumstances, emphasis was placed on the absence of previous convictions, affirmative evidence of good character, your personal and family circumstances, and your active engagement in treatment from a very short time following your arrest.
Mr Dunn QC also acknowledged that the authorities make it clear that in cases of accessing and possessing child abuse material, an offender’s personal mitigatory factors such as good character and prospects of general rehabilitation are generally given less weight.
20You are now 52. The offending occurred when you were aged between 45 and 51. You have no criminal history.
21You have lived in Melbourne all your life. You are married, and the father of 12 year old twin daughters. You have had a steady work history since leaving school in year 11, and at least since 2011, in payroll positions.
22A combination of workplace conflict, or bullying, and difficulty in adapting to working from home during covid lockdown led to your resignation from your employment not long before your arrest last year. You have not been employed since.
23Although this offending is of long duration and properly to be regarded, so far as Charges 1 and 2 are concerned, as a continuous course of conduct for the duration of the period charged, you have described an escalation in the frequency with which you accessed child abuse material, and the depravity of the material accessed, in the months leading up to your arrest, that is, as your unhappiness in your job, and the difficulties you experienced in working from home culminated ultimately in your resignation, and consequent unemployment.
24Mr Keks told me there is insufficient information from the analysis of the material found on your devices to confirm or contradict the escalation and frequency of access and increased depravity of the material. I am left therefore in the position where I am unable to make an affirmative finding on the balance of probabilities the escalation as put did occur. Even if I were so satisfied, I would not consider, having regard to the volume of the material, its nature, and the duration of the offending, that it would have been a significant mitigating factor justifying a lesser sentence.
25You consulted your general practitioner before your arrest and you were diagnosed with depression by that time. More recently, the forensic psychologist, Mr Patrick Newton, who assessed you in late June this year for the purposes of the plea diagnosed you as now suffering from major depressive disorder. Some of that is clearly long-standing and pre-existing depression. Some of it is clearly resulting from your underlying personality. Some, attributable to your distress at the circumstances in which you now find yourself, following the exposure of your conduct, the impact on your family of the discovery of your wrongdoing, and the bringing of criminal charges against you, and the likelihood of incarceration. That reactive component does not detract from the fact that you do suffer from a major depressive disorder and it is a significant condition that I take into account.
26You have a long-standing diagnosis of ulcerative colitis, and related conditions now of anterior iritis and uveitis. I accept it is a condition that is at times painful, debilitating, distressing and embarrassing. It has, and will continue to impact on your quality of life and may be exacerbated by the stress of incarceration.
27Both the depressive disorder and your ulcerative colitis and associated conditions I accept will make imprisonment more onerous for you than for a prisoner not suffering from those conditions, and accordingly I reduce your sentence by reason of that from what might otherwise be thought appropriate. That is so far as the depressive disorder I accept that both limbs 5 and 6 of Verdins have been enlivened and that it is appropriate by reason of your physical condition to take into account that imprisonment will likely be more onerous because of this and its impact on you.
28Following your arrest, you have participated in 27 counselling sessions (as a result of covid, mainly by telephone) with the psychologist, Mr Peter Hanley. It was after those sessions that his colleague, Mr Newton, conduced his assessment for the purposes of the plea. As I understand it, that was part of an overall plan from the time that you were arrested and you sought assistance.
29Mr Newton reported the focus of the counselling was to improve your insight into your behaviour, and to develop appropriate skills to reduce the risk of future offending by enhancing your empathy for those depicted in the child abuse material and to assist you to develop a relapse prevention plan.
30Mr Newton reported that you had told him pornography had been your main sexual outlet for most of your life, starting in your teens, and continuing throughout your adult life. You described it as an escape from social problems. You reported having had three serious relationships, the first in your late teens lasting about two years, the second for six years and your current relationship with your wife, for over 20 years. You described a greater interest in and accessing of pornography from the late 1990's, as high speed internet allowed you to access it anonymously and overcome the embarrassment of buying magazines from shops as you had previously. That increased access to adult pornography, coincided with the start of your relationship with your wife. I am not suggesting there was a direct correlation, it is a temporal coincidence. You described to Mr Newton an escalation, even a compulsive interest in pornography after the birth of your daughters 12 years ago.
31You described a progression from nonviolent heterosexual erotica to pursuing images of group sex, sado masochism, torture and other deviant fetishes. You told Mr Newton it was through that that you first came across images of underage girls. You described then pursuing child images, progressing from what would be classified as ANVIL level 1 images to more deviant images involving progressively younger girls, and more graphic, and violent activity involving adult males abusing children.
32Mr Newton noted you systematically searched for child abuse material and saved it in an hierarchical catalogue. You told him, as you had told the police, you had thought at times of deleting the material, and feared seeking help because of the risk of being charged, and losing your family and your job as a result.
33Mr Newton concluded you experience severe difficulties in the domain of interpersonal functioning. To compensate, you resorted to online pornography, and to adopting a highly structured and organised approach to the world. That included your highly organised cataloguing of the child abuse material. Mr Newton noted your social skill deficits and interpersonal problems have been part of your personality since childhood. Although they are not of a degree to meet criteria for a personality disorder, they are maladaptive, and are prominent features of avoidant and obsessive personality disorders.
34In interview with Mr Newton, you maintained, even insisted that your sexual orientation is exclusively towards sexual interactions with adult women. You denied any contact sexual activity with children.
35At paragraphs 54 and 55 of his report, Mr Newton concluded however :
“The offending committed by Mr Hutchison clearly indicates that his sexual adjustment is disordered, specifically the fact that he has accessed child abuse material over an extended period of time, that he has used this material for his masturbatory fantasies and that he has scrupulously saved, catalogued and organised the material combined to indicate unequivocally deviant sexuality. Beyond this, his behaviour included active, online searching for child abuse material across written, pictorial and video formats. In addition and while not illegal, Mr Hutchison has also engaged in a wide variety of fetish related materials across multiple paraphilic themes. In combination, these factors point to significant and entrenched sexual problems.”
“Diagnostically, Mr Hutchison's involvement with deviant online material is sufficiently intense to meet DSM5 criteria for an unspecified paraphilic disorder. This encapsulates my opinion that his sexual adjustment is unequivocally pathological, even though it does not fall readily within the domain of a single paraphilia as described in DSM5.”
36Mr Newton noted you had engaged positively in treatment with Mr Hanley. Mr Hanley reported that you have made some progress in developing insight into issues underpinning your behaviour and have developed what both he and Mr Newton described as a solid relapse prevention plan.
37In his report at paragraphs 57 and 58 Mr Newton referring to Mr Hanley's report, said this:
“…Notably he [that is referring to you] clearly understands the destructive impact of the industry which creates child abuse material, the damage it wreaks upon children worldwide and the role he played in encouraging this through his online activities. While it would seem that he had been aware of such matters for some years his ability to acknowledge it openly, not only to Mr Hanley but also to himself, has provided a foundation for the development of some victim empathy and a remorse that appears to be genuine.”
“The longstanding and entrenched nature of Mr Hutchison's problems, confirmed by their multifaceted expression, indicates that he will require long term therapeutic engagement if he is to resolve the deep-seated issues in his life. Nevertheless, the progress he has made in his initial treatment to date provides a foundation for some optimism regarding his ability to benefit from treatment and address his issues constructively.”
38It would appear that you have made significant progress as a result of your engagement, the persistence of your engagement with Mr Hanley and that informs the opinions expressed by Mr Newton.
39Using well recognised assessment tools, Mr Newton assessed your risk of recidivism as moderate to low. At paragraphs 63 to 65 he said this:
“In summary, a review of the factors considered by the Risk for Sexual Violence Protocol (RSVP) identifies a number of noteworthy risk factors connected to Mr Hutchison's offending. Of particular significance is the duration of his offending, the diversity of the material with which he engaged, the level of deviance present and his multifaceted engagement with the material. These aspects all suggest an increased risk of recidivism. Other factors of concern with regard to Mr Hutchison's offending are the level of sexual deviance present, his recourse to pornography and online activity as a means of addressing his stress, and his issues with interpersonal intimacy. In addition, his persisting interpersonal-skills deficits, his poor self-awareness and his limited general coping skills all point to his vulnerability to acting out in times of stress. Each of these factors adds to the risk of recidivism on his part. More positively, a review of the factors in the ‘manageability’ domain suggests that there is a relatively good prospect that Mr Hutchison will continue to derive benefit from offence-specific treatment.”
“Taking into account the totality of the information to hand, including those matters identified by the RSVP Mr Hutchison is assessed as posing a moderate-low risk of recidivism to sexual offending. That is, his risk of recidivism is somewhat less than that of a typical sex offender undergoing sentence but higher than that of a typical offender facing only online charges.”
“The most likely scenario for further offending in Mr Hutchison's case would be for online offending in the context of ongoing interpersonal isolation and stress. The best risk management strategies would involve continued provision of offence-specific treatment to address the factors identified as elevating his risk of recidivism. With appropriate participation in such treatment, it is likely he would experience a gradual reduction of risk over the medium term.”
40Notably, in concluding, he emphasised the need for you to continue to participate in specialist sex offender treatment. At paragraph 67 he said:
“The most pressing rehabilitative need is for Mr Hutchison to continue to participate in specialist sex offender treatment. Such participation would be the single most important factor in reducing the risk of recidivism on his part. The focus should continue to be upon the goals of insight development, consolidation of victim empathy and relapse prevention training. Given Mr Hutchison's good initial progress in the treatment he has received so far, the indications are that further treatment is likely to have a genuine protected benefit. I can confirm that, assuming Mr Hutchison was at liberty to attend, we would be most willing to continue to assist him with ongoing treatment as needed and to liaise with the relevant authorities whilst doing so.”
41I accept Mr Hanley’s and Mr Newton’s opinions and recommendations, and urge the Corrections authorities responsible for your management to carefully consider their comprehensive reports, and to adopt and implement their recommendations.
42
In assessing your prospects for rehabilitation, in addition to accepting
Mr Newton’s and Mr Hanley's opinions, I take into account your commitment to treatment since being charged, the continued support of your wife and parents, your good employment history and the absence of factors such as mental illness, intellectual disability or substance abuse which could interfere with a person's ability to reintegrate into the community upon release.
43I take into account also the hardship your wife and children will suffer, particularly as a result of the support you have provided to your autistic daughter. I take into account the distress that you will no doubt feel at being unable to provide that support.
44It must clearly be understood however, that it is your conduct which has brought about the consequence that you will be unable to provide that support to your daughter, and to your family more broadly. The concern that you, your wife and your parents express for your daughter consequent on your inevitable imprisonment that flows from this stands in stark contrast to the absence of concern you showed over the seven and a half years of these charges for the many victims, many of them girls of your daughters’ age, who were so shockingly exploited for the production of the child abuse material you accessed and stored.
45Sentencing is always an imperfect tool to reflect the abhorrence for the behaviour such as that you engaged in, and to balance against that the real needs and good prospects for rehabilitation of a real person who is neither all good nor all bad.
46Doing the best I can, I have arrived at the following sentences. Can you now please stand, Mr Hutchison?
47On the three charges to which you pleaded guilty you are convicted.
48On Charge 1, you are sentenced to be imprisoned for a period of three years.
49On Charge 2, you are sentenced to be imprisoned for a period of one year.
50On Charge 3, you are sentenced to be imprisoned for a period of four years.
51The sentence on Charge 2 is to commence today, 2 September 2021.
52The sentence on Charge 1 is to commence four months from today, that is on 2 January 2022.
53The sentence on Charge 3 is commence 12 months from today, that is on 2 September 2022.
54The effect of that is to impose a total head sentence of five years' imprisonment and I fix the period of three years as the time that you must serve before being eligible for parole.
55There is no pre-sentence detention, is that correct?
56MR DUNN: No, Your Honour.
57HER HONOUR: I declare pursuant to s6AAA of the Sentencing Act 1991 (Vic) that but for your pleas of guilty I would have imposed a head sentence of seven years' imprisonment and fixed a non-parole period of five years.
58I declare that Charges 1 and 2 are schedule 2 charges under the Sex Offender Registration Act 2004 (Vic) and the mandatory period of registration under that Act is therefore 15 years.
59I make the forfeiture orders sought in respect of the computer tower and the three hard drives that were seized pursuant to the warrant.
60Are there any further orders that are required to be made?
61MR KEKS: No, Your Honour, I will note that there is a statutory mandate that Your Honour explain the effect of the non-parole to Mr Hutchison.
62HER HONOUR: Mr Hutchison, I have fixed the head sentence at five years, and fixed three years as the time you must serve before being eligible for parole. It is not for me to direct that your release upon parole on that date, that is up to the parole authorities. They will make a decision and your engagement in treatment during the time that you are in custody will clearly be a significant or relevant factor to that. But I have no say over whether you are released on that date or not.
63You will note that I have urged the prison authorities to read the reports carefully and to make available to you such treatment as is appropriate to properly assist in your rehabilitation.
64Is that sufficient, Mr Keks?
65MR KEKS: Yes, Your Honour. Nothing further from me.
66HER HONOUR: Thank you. The form of declaration correct, Mr Keks, for the sentences?
67MR KEKS: Yes, Your Honour. I believe so, Your Honour, yes.
68HER HONOUR: Mr Dunn, do you want me to stay on the Bench briefly while you speak to your client or are you able to go downstairs and speak to him there?
69MR DUNN: Just if I could have a moment, Your Honour. No need for Your Honour to stay on the Bench.
70HER HONOUR: I'm required to I am afraid.
71MR DUNN: I am sorry, Your Honour. If Your Honour could just then give me a moment?
72HER HONOUR: Yes, certainly.
73MR DUNN: Thank you very much, Your Honour.
74HER HONOUR: Thank you, you can remove Mr Hutchison. Mr Dunn and Mr Keks, thank you for your assistance in what has been a complex and difficult matter.
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