CDirector of Public Prosecutions v Locke
[2021] VCC 414
•27 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01712
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| IAN LOCKE |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2021 | |
DATE OF SENTENCE: | 27 April 2021 | |
CASE MAY BE CITED AS: | CDPP v LOCKE | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 414 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – four charges use carriage service to transmit child abuse material – one charge possess child abuse material obtained or accessed using a carriage service
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act1914 (Cth), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Clarkson (2011) 32 VR 361; McEwen v Simmons (2008) 73
NSWLR10; [2008] NSWSC 1292; R v Verdins (2007) 16 VR 269; R v
Garside [2016] VSCA 74; The Queen v Miao [2016] NSWDC 181 at [1];
Bugmy v The Queen [2013] HCA 37
Sentence: Total effective sentence of 14 months imprisonment with recognisance release order.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K. Breckweg | Office of the Commonwealth Director of Public Prosecutions |
| For the Accused | Ms C. Gomez Vasquez | Victoria Legal Aid |
HER HONOUR:
Pleas of guilty and maximum penalties
1Ian Locke, you have pleaded guilty to four charges of using a carriage service to transmit child abuse material.[1] The charge has a maximum penalty of 15 years’ imprisonment. You have also pleaded guilty to one charge of possession of child abuse material obtained or accessed using a carriage service,[2] the maximum penalty for which is 15 years' imprisonment.
[1] Contrary to s474.22(1) Criminal Code Act (Cth).
[2] Contrary to s474.22A(1) Criminal Code Act (Cth).
Circumstances of the offending
2The circumstances of your offending are set out in the Crown Plea Opening dated 31 March 2021 that became Exhibit A on the plea. That document forms part of these reasons. I will not repeat it all here, but refer to some of the facts giving rise to the charges.
3Broadly, the events giving rise to Charge 1 took place between 6 March and 26 May 2020, while Charges 2 to 5 are tied to single dates in May 2020. You were 67 at the time; you were living alone at Dromana.
4At the time of these offences, you participated in various social media platforms; you both transmitted images (or an image) of child abuse material (CAM), and exchanged textural descriptions that amounted to child abuse material.
5On 28 May 2020 the Australian Federal Police went to your house to investigate an allegation that you were in possession of child abuse material, obtained through a carriage service.
6You provided police with the password to your phone.
7The police found one image, saved in the photo gallery on your phone, of a male child, about 12 years of age, standing naked and performing oral sex on a naked adult male. (This constitutes Charge 5 on the indictment: Possession of child abuse material).
Transmission of Child Abuse Images
8Later analysis of your phone showed that the child abuse images were transmitted to two Skype users on 25 and 27 May 2020.
Charge 2 – two images and accompanying text
9On 25 May 2020 at 11 pm you transmitted an image depicting a seven year old female child sleeping topless in bed to another Skype user. The image was accompanied with sexualised text including 'How's your sex life' and 'I be naked and hard later'.
10On 27 May 2020 at 12.15am you also transmitted an image of a 12 year old male performing oral sex on an adult male. The transmission of these two images with the accompanying text, forms the basis for Charge 2, a ‘rolled up’ charge taking into account these two events.
Charge 4 – transmission of same image involving 12 year old male
11In the early hours of that same day you also transmitted the image of the 12 year old male. The transmission of this image forms the basis of Charge 4.
Charge 3 - Transmission of Descriptions of Child Abuse Material
12In the Crown Opening, the child abuse material the subject of Charge 3 is illustrated by examples of text communication describing a sexual scenario with a 7 year old. Among other things you wrote:
·7 years old, I was babysitting, I went to her bed I was naked;
·Pull her blankets off strip her naked and licked her;
·She loved it and she want me;
·I cum over her.
Charge 1
13A subsequent examination of your Samsung Galaxy tablet found Google Chrome Autofill, which contained text chat communications you had sent to 11 other users of the online chat program 'Chathour' and accessed between 6 March and 26 May 2020.
14The communications describe you sexually abusing young children, including digital and oral penetration of five year old girls, ejaculating into a five year old girl’s mouth, having children lick up ejaculate, ejaculating into a year old child’s mouth, underage girls performing sexual poses with no underwear on, underage boys licking and sucking your penis, you rubbing the penis of a five year old boy, licking and digitally penetrating another child, touching a five year old girl, young girls 'fucking each another' or 'fucking' a child with a strap-on' and having a dog 'fuck' young girls. These were your words. These communications form the basis for the rolled up Charge 1. Further details of these conversations were included in tabular form at [14] of the Prosecution Opening.
Arrest and interview
15On 28 May 2020 you were arrested and participated in a record of interview.
16You admitted that you had set up a Skype account 12 months prior, and you would skype other men and women who would send you photos of underage children.
17You told police, “Once I look I delete them. I probably have passed on a couple. Um, but not many more, aside from a young boy. And there was a young girl just half-dressed”.
18You told police you would: 'Do sexual things, ah like masturbate' when viewing the photos then you would delete them.
19You admitted to police that the images found on your phone of the 'naked and semi-naked' boy and girl were sent to you, and you sent them to one or two people.
20You denied seeing any children on camera, only in photos and you denied asking for images of children.
21You admitted you were sent videos a dozen times and to sending videos three or four times. You also admitted to receiving and sending explicit images of children. You claimed to have passed on the images when you were affected by alcohol.
22You told police you knew that receiving and passing on the images was not 'right' and you did not think it was legal.
23You told police that you had been sexually assaulted as a child from the age of either seven, eight or nine up until you were 13 or 14 years old.
Prior Criminal History
24You have no prior criminal history. You are before the Court for the first time aged 68.
Procedural History
25You were charged the same day you were arrested and interviewed.
26A filing hearing was listed the next day on 29 May 2020, although the hearing was unable to proceed because the charges had not been filed with Registry. I will return later in these reasons to the circumstances of that day.
27At a second filing hearing a Committal Mention was listed on 28 August 2020.
28Following two administrative adjournments of the Committal Mention, you entered pleas of guilty at a further Committal Mention on 4 December 2020 and the matter resolved to these pleas of guilty.
Nature and gravity of the offending: culpability and degree of responsibility
29It was conceded by your counsel that your offending is objectively serious. I am required to consider the factors in cases such as R v Garside [2016] VSCA 74 from [18] and at [25] in particular where the Court sets out the matters to refer to in assessing objective gravity.
30Your offending involved the possession and transmission of just two images (I will return to the descriptive images later). One of them, is classified as a Category 4 child abuse material and features a male child of approximately 12 years performing oral sex on a naked adult male. This image is the subject of both Charges 2 and 4 (transmission) and Charge 5 (possession). The second image, was of a sleeping seven year old female child who was not wearing clothing on her top. It was conceded at the hearing that this image, in and of itself, may not have satisfied the definition of child abuse material, however once it was accompanied by sexual text it satisfied the definition by way of context. The number of children victimised by your use of these images was, in the context of other cases, relatively small. But I do not gloss over the fact that real children are the subject of these images. There was no actual cruelty being inflicted on the child in the second of the two images. There was no profit gained by you in the possession or distribution of these images, though I note the court in Garside said this was of no moment.[3]
[3] R v Garside at [25](i).
31Your transmission of the two images was limited.
32I regard the textual child abuse material, that is, the written description of acts of child sexual abuse, to be in a lower category on the scale of offending. No actual children were harmed or involved. The transmission was to adults and only adults.
33That said, the conversations tend to disgust; they are offensive to read. While it is significant that no actual children were abused in the offending, the subject of the ‘textual’ events, the legislation is directed at deterring the transmission and production of even this material. In dealing with cartoon images of child abuse, the Court in McEwen v Simmons[4] said the law in this area was ‘calculated to deter production of cartoon material because it could fuel demand for material that does involve the abuse of real children.’ In the case of R v Edwards [2019] QCA 15 the court said 'such conduct is not harmless but has the tendency to 'normalise' exploitative sexual activity among children’. However, I also respectfully adopt the sentencing remarks of His Honour Judge Berman of the District Court of New South Wales in The Queen v Miao[5] in a case where the accused had purchased a child sex doll. His Honour said:
This Court is not a Court of morals. Not all behaviour which is strange, or offensive, or even disgusting is criminal and sentencing judges have to be careful not to allow a sense of disgust to lead to an inappropriately severe sentence being imposed on an offender. What is required is that the judge evaluate the objective gravity of an offender’s conduct by considering well accepted factors which include of course the harm that an offender’s conduct causes to the victims of it.
[4] (2008) 73 NSWLR10; [2008] NSWSC 1292.
[5] [2016] NSWDC 181 at [1].
34Of course the definition referred to above renders your conduct illegal, however I am also conscious not to be overwhelmed by the offensive content of the images described. It is not suggested that you ever acted on what I am prepared to accept were essentially fantastic scenarios entertained by you.
35The courts have often said that there is an intrinsic harm caused by child abuse material.[6] All sexual activity with children is presumed to be harmful. It is difficult to assess the impact on victims in your case where the offending is substantially the creation of images, with words, in relatively private circumstances (with the important exception of the charges where actual images are used). In your case, it is perhaps only true to say that your offending contributes, to some degree, to the broader creation of a distorted view of reality, where children are viewed as appropriate sexual partners for adults.
[6] R v Clarkson (2011) 32 VR 361.
36I also take into account that, where the images are of real children, they must live with the fact that these images can now be traded, swapped and transmitted exponentially. Maximum penalties are the unequivocal indication of the seriousness with which the legislature regards these charges.
Personal circumstances
37You are now 68 years old; you were 67 at the time of the offending. You live alone in a caravan park in Dromana. You are awaiting the arrival of your wife and 18 year old daughter to Australia to live with you.
38You were born in Carlton, the eldest of your parents’ three sons. Your parents separated when you were two years old.
39You have three half-sisters born to your mother and stepfather.
40Both of your parents struggled with chronic alcohol abuse issues.
41You were raised by your mother until you were sent to the St Joseph’s Orphanage in regional New South Wales, along with your younger brothers, from the age of six until you were 12.
42At the orphanage, you endured ongoing sexual abuse of a high order.
43When you returned to live with your mother at 12 you witnessed family violence perpetrated against your mother and were further sexually abused, this time by your stepfather.
44At the age of 18 you joined the army in the 5th Battalion and served for approximately six years. As a result of poor mental health, you qualified for the disability support pension in 1997.
45You then spent 13 years working as a fitters’ assistant at the Chullora Bus Workshop in New South Wales.
46In 1991 you started a sporting business, which ultimately failed because of a misappropriation of funds by your business partner. This lead to your bankruptcy.
47In 1977 after leaving the army you met and married Linda in Sydney. You remained married for 36 years before divorcing in 2013. You and Linda share two children, who now both live in Queensland. Your son attended your hearing.
48You started drinking alcohol from 12 years old and your consumption increased with your age. You have been diagnosed with an alcohol use disorder.
49You visit your younger brothers, Paul and Kevin, regularly. They both reside in Mornington and suffer from significant medical issues, including alcoholism.
50You recently suffered a heart attack and had two stents inserted. You are on a range of age-related medications.
Matters in mitigation
Plea of guilty
51You have pleaded guilty to the offending at an early opportunity and this is important; it will lead to a significant reduction in your sentence.
52I also take into account the current circumstances surrounding the COVID-19 pandemic. Pleas of guilty have a special value in this context, where the court system faces significant trial waiting time. Your trial is not among those in a long list waiting to be heard and this will be reflected in your sentence.
Psychological material
53On your plea, a report authored by Mr Candlish was tendered. I take its contents into account in sentencing you. Mr Candlish sets out your relevant history and notes your history of depression, which has worsened at certain times, and which likely fulfilled the criteria for a major depressive disorder at various points in your history. Mr Candlish's conclusion was that you meet the criteria for ‘persistent depressive disorder (with anxious distress, early-onset, moderate)’. It is a thorough and useful report.
54Mr Candlish sets out the sexual abuse that you endured as a young person, and how it might have led to the development of deviant sexual interests as an adult. Moreover, the childhood abuse, it seems, also contributed to you being targeted for sexual abuse by stranger males in your subsequent life. Your early abusive relationships and your later sexual experience as an adult appear to have become entwined.
55On the day of your filing hearing in the Magistrates’ Court it appears that you went to the wrong court (you went to the Federal Court), however, even when you learned that you were in the wrong court, you became so anxious and paralysed that you did not feel able to correct the situation. You became increasingly anxious and distressed. This event culminated in your admission to hospital that day for psychiatric treatment.
Remorse and Insight
56On a formal risk assessment the conclusion was that you fall into a low risk category for sexual recidivism. It is noted that empathy, self-control and other protective factors are present. This is also relevant to your remorse. You do not seem to have offensive supportive cognitions, but rather chronic low self-worth. You have recently begun to address factors that make you vulnerable to offending such as the abuse of alcohol and your depression.
57I have also had regard to the reports of Drs Katelis and Chua (Exhibits 2 and 3 on the plea). These practitioners became involved with you after the events that caused your admission to St Vincent’s emergency department on 29 May 2020, the day of your court hearing. I am encouraged by the fact that you have been able to engage, and continue to engage, with your mental health treatment.
58Your counsel argued that your profound social disadvantage engages the principles in Bugmy v The Queen: the child abuse you endured in your history left its mark upon you, and the effect of that does not diminish over time.[7]
[7][2013] HCA 37 at [42] and [43]
59Your counsel ultimately only argued for one of the Verdins' limbs to be engaged, that being the major depression would make any term of imprisonment weigh more heavily upon you than upon a prisoner who does not have that mental health condition. No issue was taken with that proposition and I take it into account.
Criminal History
60While you have no prior convictions and no subsequent cases pending, I am aware of the limitations on previous good character in the sentencing calculus in cases such as yours.
Cooperation with authorities
61You cooperated with investigators. You made admissions to police. Perhaps you minimise your offending to a small degree but your general openness with the police should be acknowledged in this sentence.
Prospects of rehabilitation
62I must assess your prospects of rehabilitation in the sentencing process. I am encouraged by the commencement of your treatment for your mental health and alcohol use disorder. In the opinion of Mr Candlish your risk of reoffending is lowered on account of your age. He found that you showed minimal evidence and that you are unlikely to involve yourself in a contact offence against a child. Counsel submitted that you were embarking upon an application to the national redress scheme, in relation to the abuse sustained by you in early childhood. I assess your prospects of rehabilitation as good.
63I have had regard to the matters in s16A 2AAA and the requirement that I consider a disposition that allows for sufficient time in rehabilitative programs.
Relevant sentencing principles
64I have had regard to the matters in s 16A of the Commonwealth Crimes Act generally. General deterrence is a very significant matter for this sentence. Your personal circumstances are of course relevant, and I accept that many of these are quite tragic, but I must not allow that part of your case to overwhelm the requirement for general deterrence. I am conscious that charges one and two are rolled up charges, with Charge 1 reflecting 11 separate events of offending. Charge 2 covers two instances of offending.
65I am required pursuant to s 17A of the Crimes Act, to be satisfied, if imposing a sentence of imprisonment, that no other sentence is appropriate.
66I must sentence you to protect the community, to punish you, and to deter others from offending in the same way. I regard specific deterrence to be of lesser weight in your case. No table of comparative cases was tendered; yours is a particularly difficult case to find comparable cases. I have considered the other cases in the general sentencing landscape.
67I am obliged, pursuant to s 16(1) of the Crimes Act to impose a sentence of a severity that is appropriate in all the circumstances, taking into account the need to ensure that you are adequately punished.
68The courts have repeatedly stated that a term of imprisonment will ordinarily be expected for offences involving child abuse material. That fact, and the fact that the principles in Boulton are of limited or no assistance in this Commonwealth sentencing exercise, leads me to conclude that a sentence of imprisonment is warranted in your case, however you will not need to serve that sentence immediately.
Totality, concurrency and cumulation
69Ian Locke, on Charge 1: using a carriage service to transmit child abuse material, you are convicted and sentenced to seven months' imprisonment.
70On Charge 2: using a carriage service to transmit child abuse material, you are convicted and sentenced to six months' imprisonment.
71On Charge 3: using a carriage service to transmit child abuse material, you are convicted and sentenced to three months' imprisonment.
72On Charge 4 using a carriage service to transmit child abuse material, you are convicted and sentenced to four months' imprisonment.
73On Charge 5: possession child abuse material, you are convicted and sentenced to two months' imprisonment.
74I direct that the sentence on Charge 1 begins today.
75The sentence on Charge 2 begins 4 months from today.
76The sentence on Charge 3 begins 8 months from today.
77The sentence on Charge 4 begins 9 months from today; and
78The sentence on Charge 5 begins 12 months from today.
79My intention is that three months of the sentence in relation to Charge 2, one month of the sentence on Charge 3, two months of the sentence on Charge 4, and one month of the sentence on Charge 5 will be served cumulatively, upon each other and upon the sentence on Charge 1, making a total effective sentence of 14 months' imprisonment.
80On Charges 1 to 5, pursuant to s 20(1)(b) of the Crimes Act 1914, I direct that you be released forthwith upon giving a recognizance in the amount of $2000, and your undertaking to be of good behaviour for a period of three years. Further, you are required to comply with the following conditions as part of that undertaking:
(a) Undertake the sex offender treatment program;
(b) Submit to assessment and treatment for mental health; and
(c) Submit to assessment and treatment for alcohol misuse.
s6AAA Sentencing Act
81Pursuant to s 6AAA of the Sentencing Act I indicate that had you not pleaded guilty, but had been found guilty, I would have sentenced you to a term of actual imprisonment of 12 months.
Pre-sentence detention
82I note that there is no pre-sentence detention to be recorded.
Sex Offenders Registration
83In terms of the sex offenders registration, four counts on the Indictment are Class II offences and, accordingly, I am obliged to place you on the Sex Offender Register for life pursuant to s 34(1)(c) of the Sex Offenders Registration Act 2004.
Ancillary Orders
84I make the forfeiture order in relation to the seized Samsung Galaxy tablet the subject of the offending.
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