CDirector of Public Prosecutions v Leishman
[2019] VCC 283
•13 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02302
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER LEISHMAN |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2019 | |
DATE OF SENTENCE: | 13 March 2019 | |
CASE MAY BE CITED AS: | CDPP v Leishman | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 283 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Fail to comply with reporting
Legislation Cited:
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – Phillips v R [2012] VSCA 140 – Verdins (2007) 16 VR 269 – HMcL v R (2000) 174 ALR 1 – Gordon [2013] VSCA 343
Sentence: TES on Commonwealth and State charges is 26 months imprisonment to be released on a recognisance order on conditions that security by recognisance of $500 to be on good behaviour for 2 years after serving 3 months imprisonment on the Commonwealth charges. State charge combination of 8 months imprisonment and 2 year Community Corrections Order. Sexual Offenders Register for a life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Haban-Beer | CDPP |
| For the Accused | Mr J. Van Arkadie | VLA |
HER HONOUR:
1 Peter Leishman, you have pleaded guilty to three charges.
2 I sentence you on the basis of the prosecution opening[1], which is an agreed summary. I will briefly outline your offending.
[1] Exhibit A
Charge 1: Fail to comply with reporting conditions
3 In 2007, you were convicted and sentenced for four charges of making or producing child pornography and four charges of possessing child pornography and as a result became a registered sex offender for life under the Sex Offenders Registration Act.
4 Charge 1 is a State offence of failing to comply with reporting obligations you have because of your status as a registered sex offender (maximum sentence of 5 years’ imprisonment). The rolled-up charge relates to your failure to report to police two internet usernames within 7 days of their creation and use, with the relevant period being August 2014 to December 2016.
Charge 2: Accessing child pornography
5 On 10 August 2017, police executed a search warrant on your premises and seized some electronic devices. Forensic analysis of your computer revealed the two usernames I just referred to, as well as the internet history showing that you had accessed child pornography on numerous occasions between January and August 2017, and had kept child pornography on your computer.
6 Samples of the child pornography you accessed included image and video files containing real children, as well as animated and text based publications. The descriptions of these samples show them to be vile and exploitative.
7 Charge 2 is a Commonwealth offence of accessing child pornography using a carriage service (maximum sentence of 15 years’ imprisonment). The charge is put on the basis that you regularly used the internet to make child pornography available to others. You were engaged in a course of conduct over 7 months, and although you were not being paid for the distribution, you played a part in the dreadful global trade in depravity and exploitation of children.
Charge 3: Possession of child pornography
8 Charge 3 is a State offence and relates to your possession of the child pornography found on your computer when seized on 10 August 2017, consisting of 192 files (maximum sentence of 10 years’ imprisonment).
9 While the majority of files (113) were animated or virtual images (category 6), they included lifelike computer-generated images of penetrative sexual activity with very young girls. The twenty-three category 4 images of children being penetrated by an adult included real girls of a very young age, some of whom were, shockingly, depicted in apparent pain. The two category 3 images showed children of very different ages, one about 15 years and the other a toddler, and although there was no penetrative activity, the images both depict a disgusting exhibition of depravity and power. Likewise, the fifty-five category 1 images include girls aged from about 5 to 15, which were exploitative of their young age and vulnerability in exposing their genitals to the camera.
10 Although not a huge number of images were possessed by you, this does not make Charge 3 less serious given the level of depravity shown in the samples. There were 79 ‘real’ victims involved in this material.
11 These offences are sickening. They are serious criminal offences, which is demonstrated by the fact that the Victorian Parliament doubled the maximum sentences for offences like Charges 1 and 3 in 2008 and 2010, while the Federal Parliament increased the maximum sentence for an offence like Charge 2 from 10 to 15 years in 2015.
12 Just because the victims are not identified, does not mean that child pornography is a victimless crime. Every real child depicted in the images you possessed is a victim, not just during the appalling abuse suffered at the time of the creation of the pornography, but forever, as these images cannot be wholly removed from the internet. As they grow older and learn the real significance of what was done to them, if they were not old enough to realise it at the time, they will have to live for the rest of their lives with the awful knowledge that at any given time, someone like you will be looking at them, thereby perpetuating their abuse.
13 While your possession and access was not done for profit, and the pornographic material identified did not involve as large a quantity as found in other cases, your participation in the global market involving possession and distribution of child pornography is nevertheless of high seriousness.
14 Although I have no statements describing the particular impact on any of the child victims, because they have not been identified, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[2], and which includes future harm[3].
[2]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[3]Adamson v R [2015] VSCA 194, [56]
15 For sexual offending against children, it is expected that the court will impose a sentence which reflects the seriousness of such conduct, condemns and denounces the conduct, and provides protection to the most vulnerable in society.
16 I take into account your criminal history. You were convicted for indecent assault in 1985 and 1988 and received prison sentences of 2 years and 12 months respectively. The circumstances of the offences are not clear[4], as your memory problems make it hard for you to recall the detail from so long ago, and no official records or accounts of the offences have been provided to me. Although the convictions are from many years ago, in my view, as sexual offences, they remain relevant to my sentencing of you today.
[4] See Exhibit 2
17 As I mentioned earlier, you were convicted in 2007 for four charges of making or producing child pornography (by downloading and printing images) and four charges of possessing child pornography. You were released on a community based order for 18 months with conditions including completing a sex offender program, and to undertake unpaid work. In 2016, you were convicted for failing to comply with reporting obligations as a registered sex offender (by not disclosing your internet and other accounts), and received a community correction order for 12 months with a condition to undertake unpaid work. These two court appearances are highly relevant to the sentence I am imposing today.
18 You completed the first community order successfully, and completed the special conditions of the second, but during the second order, in 2016 you began the offending in Charges 1 and 2. That is an aggravating feature of your offending in those charges.
19 In reaching the appropriate sentence for your serious offending in all three charges, I must consider some factors that are to be taken into account in your favour.
20 The first of these factors is your plea of guilty which you expressed an intention to do at an early opportunity. This shows that you accept responsibility for all your offending, and also demonstrates remorse or contrition. Also, because of your plea, you have saved the community the time and cost of a trial, and demonstrated your willingness to facilitate the course of justice, even though the case against you is strong[5]. As a result of the effect of your plea of guilty, the sentence I will impose is less than otherwise would have been the case.
[5]Phillips v R [2012] VSCA 140, [36]
21 Next, I take into account that you co-operated with the investigators, and made admissions in the interviews. Importantly, I take into account that you were frank about admitting matters that were against your interest. To the extent that you were not upfront in your responses, I accept that is because of your memory difficulties, which I will come to shortly.
22 Next, I take into account that you have not committed any crimes since committing these offences. I note that you no longer have a computer, although you do have an internet-capable phone.
23 Next, I take into account your personal history and circumstances. You are now aged 64 years and were aged 60 to 63 during the offending. You are the eldest of five children born to your parents. Your father was abusive to your mother and you witnessed this constantly as a child. At about 16, you physically stood up to your father to protect your mother. Around this time, the family discovered that he had been sexually abusing your sister. Your mother said you were of an age to leave home and so you did. You have had little or no contact with any family members for years. You left school after Year 9 and got a job first at General Motors Holden and then for more than 8 years at Melbourne Clutch and Brake. You also worked in plumbing and handy man jobs.
24 Your work history was affected by your consumption of alcohol, which you began when you were aged 13. By the time you started work, casual drinking was a regular event. Eventually you were drinking 2-3 slabs of beer daily, and even drank methylated spirits when you could not afford other alcohol.
25 You apparently stopped drinking alcohol completely between 1986 and 2001, because you realised it was damaging your heath. You then resumed drinking, but restricted yourself to between 1-3 beers daily or about 2-3 times per week.
26 You have had a small number of intimate relationships, including one which resulted in marriage and the birth of a daughter, but as she was apparently one of the victims of your earlier sex offending, you have no contact with her or her mother. Through your participation in the Choir of Hard Knocks, you formed a relationship in October 2017, but neither she nor others in the Choir know of your current charges. You have greatly enjoyed your weekly participation in the Choir, which you have engaged in for about 10 years, where you sing and play both ukulele and guitar. I accept that this is a good social outlet for you, given that before you began with the Choir, you had no contact with your family and no employment. You have lived in the same rooming house for about 7 years and have established a routine for yourself which includes cooking for some of the other residents.
27 In 1993, you were assessed by a neuropsychologist as having an acquired brain injury as a result of your excessive alcohol consumption. You were found to have a number of cognitive deficits, but most severe was the impact on your immediate memory. Following this assessment, you were found to be eligible for a Disability Support Pension due to your chronic short term memory loss.
28 You were also recently assessed by a clinical neuropsychologist, Louise Scott, who provided a report to the court[6]. She confirmed that you have severe deficits in memory functioning affecting new learning, retention and retrieval of information, which create difficulties for you in daily life. She is of the opinion that your disorder of impulse control and behavioural dysregulation would have limited your ability to stop yourself from accessing the pornographic images. She considered your cognitive impairments would make imprisonment more difficult for you, and increase your risk of re-offending; however, she noted you found your previous participation in programs in your community based order beneficial, and while she queried how much you could have retained and learned given your degree of cognitive impairment, she made a number of recommendations to maximise your participation in future treatment.
[6] Exhibit 3
29 You were also recently assessed by Simon Candlish[7], a psychologist, who formed a view of your risk of re-offending using tools available to him. He found you are in the high risk category for non-contact sexual offending likely to involve possession of child pornography, and a moderate-low risk for contact sexual offending involving a child known to you, based on what is known of all your previous sexual offending. Mr Candlish thought you met the criteria for Paedophilic Disorder and also experienced symptoms of depression, which Ms Lofthouse also noted. Both experts referred to you having some insight into the impact on child victims of pornography. Mr Candlish also made some recommendations for treatment and management of your risk.
[7] Exhibit 2
30 I accept the opinions of both experts, and advise in the strongest terms that those involved with your treatment and management of your sentence carefully read those recommendations and apply them.
31 Your counsel submitted that your cognitive deficits from your acquired brain injury and the effects of depression together leading to a lower ability to resist the impulse to access child pornography, should lead to a reduction in your moral culpability, have a bearing on the kind of sentence I impose, mean that deterrence of others and of you by my sentence is less significant as a sentencing objective, and mean that a prison sentence would weigh more heavily on you than a person without your impairment. I also note that your physical health has not been good, with more than 50 presentations to an Emergency Department between 2015 and 2017.
32 Your counsel conceded that prison will form a part of your sentence but submitted that a recognisance release order for the Commonwealth charge, and/or a community correction order on the State charges, which addressed your rehabilitation and assisted you would reduce your risk of re-offending and thus protect the community. You were assessed as being suitable for a community correction order.
33 The prosecutor submitted that only a term of imprisonment was appropriate for these serious offences, and referred me to a table of comparative cases, as well as statements of principle about cases involving child pornography offences. In response to your counsel’s submissions, it was submitted that protection of the community was a principal purpose in sentencing you, and that while your impairments could lead to some moderation of general deterrence as a sentencing objective, there were elements of your offending which show a degree of active participation and deliberate steps taken to access the child abuse material, as opposed to passive receipt of the material and a lack of impulse control.
34 I have decided the principles in the case called Verdins[8] do apply to your case. As a result, there is a slight reduction in your moral culpability, less need for general and specific deterrence, but both remain relevant, and your impairment will have a bearing on the kind of sentence and length of any imprisonment that I impose. I acknowledge that although you have served terms of imprisonment before, they were served 30 years ago, when you were a younger man not yet diagnosed with an acquired brain injury.
[8] (2007) 16 VR 269
35 However, the principle of denunciation remains of paramount importance in a case involving child pornography via use of the internet.
36 I can only sentence you to a term of imprisonment if it is of a severity that is appropriate in the circumstances, and no more severe than is necessary to achieve the purpose for which sentence is imposed.
37 I have considered your prospects for rehabilitation in light of the expert opinions, and I find that they are guarded, by reason of the issues set out in the exhibited psychological reports, and the diagnosis of paedophilia. You are willing to engage in further treatment, and have some insight, but much more needs to be done in order to protect the community from you. I accept that not having a computer reduces your risk of online offending, but the risk still exists, particularly without offence-specific treatment and treatment for your paedophilia, depression and underlying issues.
38 I have taken into account all relevant matters under the Commonwealth Crimes Act, and the Victorian Sentencing Act many of which I have referred to in these remarks.
39 As a result of my sentence today, you become a registrable sex offender once more, for life. You will be required within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting as required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life.
40 I have decided that there is no alternative to imprisonment on all charges, but I propose to structure the sentence to provide for treatment which may lead to better protection for the community.
41 Because of your two previous sentences of imprisonment for indecent assault, you are to be sentenced as a serious sexual offender on State Charge 3. That means the protection of the community from you is the principal purpose for which sentence is imposed on that charge. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. However, the prosecution do not seek that, and I do not intend to do that.
42 It is also necessary for the sentence I impose on Charge 3 to be wholly cumulative on the sentences on the other charges unless I order otherwise, because of your status as a serious sex offender. Because of your personal factors that I have outlined, I have decided to order concurrency. In saying that, I have also had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[9].
[9]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
43 I will announce the formal orders in a moment, but the outcome is that you will be sentenced on Commonwealth Charge 2 to 18 months’ imprisonment to be released after serving three months on what is called a recognisance release order in the amount of $500 to be of good behaviour for 2 years, and to complete a Sex Offender program in that time. If you do not behave yourself, you will be sent to gaol for the remaining 15 months.
44 On the State charges (1 and 3), you will be sentenced to a total of 9 months’ imprisonment, and if you agree, I will convict and release you on a community correction order for 2 years following the term of imprisonment, with the conditions I will outline in a moment.
45 Because you must agree before I can release you on a community correction order for the State charges, I need to tell you what the conditions are, even though you have been on such an order before. The core conditions attached to every community correction order are that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance with the order.
46 I will also order that you comply with other conditions during that two years: that you be under supervision by Corrections Victoria; that you complete 50 hours unpaid community work; that you undertake programs as directed by the community correction officer to reduce your risk of re-offending; and that you be assessed and if required, receive treatment for mental health issues and alcohol use. I direct that the hours of treatment and rehabilitation are to count towards the hours of unpaid work. Mr Leishman, do you agree to being released on a community correction order with those conditions attached, for Charges 1 and 3?
47 OFFENDER: Yes, Your Honour.
48 HER HONOUR: If you do not complete any condition of the community correction order, you will be brought back before me to be re-sentenced on Charges 1 and 3 and also be dealt with for not doing what you are ordered to do under the community correction order. So, do you understand what will happen if you do not complete any condition of this order?
49 OFFENDER: Yes, Your Honour.
50 HER HONOUR: I should also tell you that both the Commonwealth recognisance release order on Charge 2, and the State community correction order on Charges 1 and 3 can be changed or removed by the court if your circumstances change. To do that, you should get legal advice.
51 Yes. Stand up please.
52 You are convicted and sentenced as follows:
53 On Charge 2 (Commonwealth) – access child pornography using a carriage service – 18 months’ imprisonment. That sentence starts today.
54 I direct that you be released under Section 20 of the Commonwealth Crimes Act after serving three months, on a recognisance release order on conditions that you give security by recognisance of $500 to be of good behaviour for 2 years, and that you complete a Sex Offender Program.
55 On Charge 3 (State) – possession of child pornography – 8 months’ imprisonment. I direct that it be entered into the records of the court that you have been sentenced on this charge as a serious sex offender. That sentence starts immediately upon the expiry of the pre-release period imposed under the recognisance release order for the Commonwealth sentence.
56 On Charge 1 (State) – Fail to comply with reporting obligations – 1 month’s imprisonment. That sentence starts 1 month before the expiration of the sentence on Charge 3.
57 The effective State sentence is 8 months’ imprisonment. I direct that after serving the term of imprisonment on Charges 1 and 3, you be released on a community correction order for 2 years with the core and special conditions I have outlined.
58 The effect of the orders for commencement of sentences on all charges is a global effective sentence on State and Commonwealth offences of 26 months’ imprisonment.
59 To make it clear, it is my intention that you complete three months of the Commonwealth sentence and then be released after the total effective State sentence has been completed. Then you will be under the conditions of a recognisance release order and a community correction order for the next two years. If you do not re-offend in that period, you will not serve any more time in prison. If you do offend, you will forfeit $500, you will return to prison to serve the remaining 15 months of the Commonwealth sentence, and you will be re-sentenced by me on the State charges, as well as sentencing you for not complying with the court orders.
60 You will now be asked by my Associate to sign three documents but I will come back to that in a moment. Just take a seat, Mr Leishman.
61 As I am going through, I think that there is some problem with the sentence figures that I have given. I do not think it adds up correctly to what I have said. I have ordered concurrency with the two State charges, that means a total effective sentence of 8 months rather than 9 months.
62 MS HABAN-BEER: Yes, Your Honour.
63 HER HONOUR: And that would mean a global effective sentence of 26 months. With those corrections, does the sentence otherwise as announced achieve what I am setting out to achieve?
64 MS HABAN-BEER: Yes, Your Honour, I think it does, but would Your Honour perhaps - - -
65 HER HONOUR: I can say that I will not enter it into the record till the end of today.
66 MS HABAN-BEER: Yes, if that is convenient to the court. We will just double-check the timeframes, Your Honour.
67 HER HONOUR: Yes. Yes.
68 MS HABAN-BEER: And the concurrency. I think that is right but, Your Honour, we would probably only need five to ten minutes if - - -
69 HER HONOUR: That is fine. That is fine.
70 MS HABAN-BEER: Thank you, Your Honour.
71 HER HONOUR: All right. Well, if you like, before I complete the sentence, I can stand down now - - -
72 MS HABAN-BEER: Thank you, Your Honour.
73 HER HONOUR: - - - and if that is sufficient time, otherwise, as I said, I can say that I will not enter them into the court until the end of today to give everyone time to look at it further.
74 MS HABAN-BEER: Your Honour, I think we can deal a break quickly hopefully.
75 HER HONOUR: All right. Thank you. I will just stand down briefly.
76 MS HABAN-BEER: Thank you.
77 (Short adjournment.)
78 HER HONOUR: Thank you. Yes.
79 MS HABAN-BEER: Thank you, Your Honour. I am grateful for that time. There is nothing that needs to be raised. We have agreed that that makes sense. The recognisance release order will start on 13 June 2019 on the basis of Your Honour's sentence and the State charges will then run until 13 February 2020.
80 HER HONOUR: Yes. All right.
81 MS HABAN-BEER: And, Your Honour, we do agree with the global effective sentence of 26 months given the - - -
82 HER HONOUR: All right. Thank you. Now, I do not say those dates in my sentence but it is just - - -
83 MS HABAN-BEER: No, certainly not but we did work them out just so we - - -
84 HER HONOUR: Work it out that way.
85 MS HABAN-BEER: - - - are aligned with Your Honour's sentence.
86 HER HONOUR: Thank you. Mr Van Arkadie, you agree?
87 MR VAN ARKADIE: Nothing to add, Your Honour.
88 HER HONOUR: All right. Thank you. All right. So, Mr Leishman, returning to the sentencing remarks, you will now be asked by my associate to sign three documents.
89 The first is your agreement to abide by the conditions which allow for your release on Commonwealth Charge 2, that is, to be of good behaviour for 2 years after 3 months of imprisonment and to complete the Sex Offender program. The second is to show that you agree to abide by the conditions of the community correction order on State Charges 1 and 3, and the third is a form notifying you of your reporting obligations under the Sex Offenders Registration Act, which I mentioned earlier, Mr Van Arkadie will assist you with these forms. Thank you.
90 MR VAN ARKADIE: If I may leave the Bar table, Your Honour.
91 HER HONOUR: Yes, certainly.
92 MR VAN ARKADIE: Thank you for that opportunity, Your Honour.
93 HER HONOUR: Thank you. So I have signed both the recognisance release order and the community correction order so they will be in force after you have completed that period of imprisonment.
94 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required.
95 If you had not pleaded guilty to the State charges, but had been found guilty after a trial, the sentence I would have imposed on Charges 1 and 3 alone is a total of 2 years’ imprisonment.
96 Yes. Thank you. There are no other orders?
97 MS HABAN-BEER: No, Your Honour.
98 MR VAN ARKADIE: No, Your Honour.
99 HER HONOUR: All right. Well, I thank counsel for their assistance. Mr Leishman may be removed.
100 MS HABAN-BEER: As Your Honour pleases.
101 MR VAN ARKADIE: As Your Honour pleases.
102 HER HONOUR: Yes. Thank you. We will adjourn then until 9.30 tomorrow.
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