CDirector of Public Prosecutions v O'Halloran
[2021] VCC 1234
•25 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01780
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ANDREW O'HALLORAN |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 April 2021, 13 July 2021, 6 August 2021 |
DATE OF SENTENCE: | 25 August 2021 |
CASE MAY BE CITED AS: | CDPP v O'Halloran |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1234 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea - Use Carriage Service to transmit child pornography/abuse
Material - Committed by online chat and messaging- possession or
control of child abuse material obtained using a carriage service- 259
images in category one - 14 in category 2 - 19 in category 3 - 41 in
category 4 and 2 in category 5 - No priors - less weight accorded to
good character - craniostenosis condition effect on incarceration
speculative - paedophilic disorder - no Verdins point or intellectual
disability – remorse- General deterrence paramount- effect of COVID
19 pandemic - sentence of 24 months to be released on RRO after
12 months.
Legislation Cited:
Cases Cited:
Sentence:2 years imprisonment, Recognisance release order after 12 months, with $3,000 security. Sex offender registration for life. Pursuant to s6AAA of the Sentencing Act 1991, the sentence that would have been imposed if convicted of these offences after trial would have been 36 months imprisonment and, after serving 20 months of the sentence complying with the conditions of the Recognisance Release Order, the accused would have been released.
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr M. Wilson | Ms Naomi Schmitz |
For the Accused | Mr D. Cronin | Michael Brugman |
HIS HONOUR:
1Andrew Peter O'Halloran, you pleaded guilty to a charge of using a carriage service to transmit child pornography material, contrary to s474.19(1) of the Commonwealth Criminal Code; two charges of using a carriage service to transmit child abuse material contrary to s474.22(1) of the Commonwealth Criminal Code; and one charge of possessing or controlling child abuse material obtained or accessed using a carriage service.
2In sentencing you in relation to Charge 1 which relates to a child pornography transmission between 29 August 2019 and 13 September 2019, which material relates to a child with your agreement, the court will take into account a charge of using a carriage service to child abuse material contrary s474.22(1) of the Commonwealth Criminal Code about which you admitted and indicated your plea of guilty pursuant s16BA of the Crimes Act 1914 (Cth). This relates to further transmission of child abuse material sent to one Tara on 8 October 2019 contrary to s474.22(1) of the Commonwealth Criminal Code.
3I will have something more to say towards the end of the sentence about the way in which taking into account of that offence works. I note that Charge 1 on the indictment is a rolled-up count, comprising the use of a number of internet applications during that period.
4The circumstances of your offending were outlined in a prosecution document tendered upon your plea without dispute. I will briefly summarise it for the purposes of the sentence.
5At the time of the offending, you were 35 and 36 years of age. You are now 37. You lived with your parents. Between late August and mid-September 2019, you were using internet applications, Chatib and Skype. The first is a site which gives access to free live chat rooms and allows private messaging between participants without member registration. Skype is an application which enables communication with video and audio chat calls, which upon registration with some personal information, provides instant messaging services between users.
6In August 2019, under the screenname, 'Love Single Moms', you used Chatib to initiate a text-based conversation with one Tara who purported to be a single mother living in Sydney with a 9-year-old daughter called Princess. Her username was CEIU22. During the conversation you made these comments in relation to Tara's nine-year-old daughter. 'What do you think she would do if she saw me naked?' 'Do both of you walk around naked at home?' 'What would you do if I become erect looking at her while she was naked' which you said, 'Would only be natural' inter alia.
7You asked, 'Do you think she would stare at my hard cock?' Further stated, 'I love incest' to which you received the comment from her, 'That's a taboo I would never go all the way with her' to which you replied, 'So, you've only felt each other's pussies'. You asked if Tara would let her daughter watch the two of you have sex for educational purposes and asked her, 'Where's your partner? You could let me be her first, I'd be gentle with her. It might take a bit of time to penetrate her, I would use lots of lube and just my little finger at first'. You added, 'One thing I'd really want to do is lick a young girl's pussy, and maybe her tight asshole too'.
8Unbeknown to you, Tara was a senior constable from New South Wales police who used the username and was undercover. Princess did not exist. Conversation moved to Skype the same day by way of text-based conversation. When asked, 'Was ready to work' if you were in Victoria and not Sydney by Tara, you replied, 'I didn't think it was going to go this far. I could easily fly up there'. You added you could get a work transfer to really 'Get along'.
9Attached to your Skype profile were a username but also your mobile number, your birth date, your location, and your name. Over the next 10 days you continued the text-based conversations, but on 10 September 2019, you referred to your recent birthday. You asked Tara how she felt about, 'Swapping pics'. You again discussed flying to Sydney and on 13 September during a Skype text, you told Tara you, 'Really wanted a nudist and incest family', with your ultimate being yourself with a partner and two daughters. You also asked Tara if she had 'Rubbed her daughter's pussy rather than clean it when she was younger'. You added, 'Seeing both of you naked would be hot. It just got me hard now'.
10On 24 September 2019 during a text-based Skype conversation, you sent Tara a photo of yourself. As to the schedule offence, in early October Tara gave you her phone number and you rang her. You had a conversation about your personal life and interests, including how you became interested in children preferably between the ages of 4 to 10, and that you attempted to get images from websites and other users. Conversation than extended to Tara's daughter, in which you said you would teach her, 'Everything sexual' by penetrating her with your finger.
11Then you switched back to Skype and had a text-based conversation, on which you focussed on your introduction of the child to sex acts, and that her mother could teach her to masturbate. You offered to plan a weekend up in Sydney, where you would stay at her home, and where you hoped to see the child naked at get to, 'Lick her pussy, shower with her, and she could play with you, wash your penis, and suck it'.
12On 14 October, you had another telephone conversation with Tara, a conversation which falls outside the charged period in Charge 1 and occurred six days after the scheduled offence. They are referred to in order to understand the context of the offence. During that telephone call, you discussed your sexual interest in children, which you said started by looking at pictures and your desire to engage in oral sex with them. You said that you masturbated to the images you had, and that nudist pictures were the safest way to see underage girls, because it was not really child pornography and that you needed to be careful, because the government, 'Tap into people's calls'.
13Your contact with Tara ceased on 4 November 2019. As to Charge 2, earlier on 21 September 2019, you had used Skype to have a text-based conversation with an unidentified user, perhaps a female. The exchange outlined in the opening included your inquiry as to the other person's babies, whether she breastfed them while naked, if you could see the baby naked, and if the female would 'Spread the baby's legs so that you could see her pussy'.
14As to Charge 3 on 20 February 2020, you used Skype to have a text-based conversation with an unidentified user, possibly a female which appears to be a continuation of an earlier online chat. You asked her if she had sex with her son, which you found, 'A turn-on' and then she told you that she had oral sex with him. You added, 'I think it's okay'. When you were asked if you had done anything like that, you replied, 'It was a fantasy of yours, and you wanted to lick her nine-year-old daughter's pussy'.
15As to Charge 4, the New South Wales police officer who had used the name Tara in conversation with you made enquiry about you through the application and carriage service providers, which enabled her to cross-reference your email address shags1229, your Skype name, your phone number, and your address.
16In April 2020, investigators came to your parent's home address and executed a search warrant. They seized and searched your mobile phone, which contained the Skype application and details of the user who contacted Tara. You voluntarily directed police to USB devices in your bedroom desk. You provided email addresses and usernames. A number of other devices, hard disk drives, computer, phones, USB sticks, DVD's, were seized and later analysed. Several of those contain child abuse material as defined in s473(1) of the Criminal Code.
17Child abuse material is classified according to the scales of the Child Exploitation Tracking System in the Australian National Victim Library into five categories which were described in the summary. The material you possessed was categorised pursuant to these standards. A breakdown for each of the five devices or storage location may be found in the charts, prepared and reproduced at paragraph 35 of the opening.
18The totals were 259 images and 3 videos in category one, 7 images and 7 videos in category two, 15 images and 4 videos in category 3, 21 images and 20 videos in category four, and 2 images in category five; a total of 304 images and 34 videos.
19The unfortunate task of viewing a sample of this material is disturbing and frankly revolting. Category one contained images of predominantly prepubescent girls aged between two and ten years approximately in various stages of nudity. The focus is predominantly on the child's vagina. Although some are not sexually suggestive of themselves, many are sexually suggestive. This is usually because of posing without sexual activity but with explicit emphasis on genital areas and urination. Photos and videos depict children posing in a sexually suggestive manner, sometimes wearing lingerie.
20Category two shows prepubescent females between four and ten years of age in various stages of nudity, exposing their vaginas and male children, female children, in non-penetrative activity engaging in masturbation, including between children.
21Category three covers images and videos of predominantly prepubescent females aged between six months and ten years of age in various stages of nudity. These predominantly include the presence of an adult male penis and a female child, taken post-sexual penetration. In some images, involving ejaculate on the girl's anus or vagina, including infant females. Also, images of female children with adult males in possession with penetration may be occurring but cannot be confirmed. But generally, images of non-penetrative activity depicted between children and adults.
22Category four depicts penetrative sexual activity between children and between children and adults, including cunnilingus, intercourse, and fellatio. They show predominantly prepubescent females between six months and ten years in various stages of nudity, depict vaginal and anal penetration of female children and infants and include children performing oral sex, vaginal penetration on each other.
23Category five concerns materials which shows depictions of bestiality, sadism, humiliation, such as urination, defecation, vomit, and bondage, torture, or child abuse. The images contained prepubescent females aged one year old approximately, naked from the waist down laying on a bed, bound and secured to the bed by the wrists.
24In addition to the child abuse material in these devices, there were found in excess of 30,000 files of non-illegal nudist colony photo and videos, focused on female children engaging in various recreational activities while naked.
25On 28 April 2020, you were arrested and interviewed. You told police you recalled talking to Tara related to what you would do to her daughter, including touching and oral sex, but you denied talk of penetration. You denied intending to visit Tara in Sydney. You said your sexual preference was for minors aged five to ten years. You admitted the possession of child abuse material with children depicted from toddler age to 10 or 11 years. You told police you exchanged videos with other men that you had images on USB sticks for probably more than two years, but then told police you had traded images and videos up to four or five years before (Questions 209-2013, 252 and 348).
26You admitted you used some of the nudist images as a way of looking at underage females, and you used such images for sexual gratification. You told police the discussions surrounding the penetration of Tara's nine-year-old daughter was merely fantasy which you had not intended pursuing. You admitted using images of naked children, including men ejaculating on them to masturbate. You were then charged and bailed.
27The final hearing was held in May 2020 and a few days after, your record of interview, and a committal mention listed for 4 September 2020. The matter was adjourned on that date to enable discussions, and on 11 December 2020 the matter resolved with pleas of guilty.
28There have been some delays from April to July in order to have the matter come before the court in a time of pandemic measures which have impacted on the court's work. I will treat your plea as having been offered at the earliest opportunity and I will return to this in a moment.
29This case is particular because it is said without demure by the defence. That the conversations by phone and text-base which I have outlined in the summary, in relation to Charges 1, 2, and 3 and the scheduled offence to be taken into account, deals with transmissions of child pornography material or child abuse material strictly in this form.
30There is no suggestion that what was sent by you to Tara on 24 September by way of a photo of yourself was in anyway caught by the definition which are contained in ss473.1 of the Criminal Code which defines child abuse material as of 21 September 2019 or the predecessor in place before that date, both as to child abuse or child pornography material.
31No argument was raised as to this and I act therefore to sentence on the basis that your conduct in the conversations I have outlined are rendered subject to transmission sections noted above in relation to Tara and the other two users with whom you had conversations.
32Charge 4 is a more traditional and conventional count related to images and videos possessed and controlled by you by way of your devices, which fall into the category of child abuse under s473.1(A-G).
33In my view, there is a distinction to be made about Charges 1, 2, and 3 from Charge 4. The transmission of material caught by the section which is in the form of conversation and texts are undoubtably deplorable and bring into consideration issues of the proper assessment of criminal and moral culpability of a different dimension from the possession and control of actual child abuse material of a pictorial nature, both still and audio/visual.
34The conversations caught in the offending in the first three charges, the first in a rolled-up count, cover exchanges which an undercover police officer in relation to that count participated in, and exchanges with real people in Charges 2 and 3. They are graphic and abhorrent. They indicate a willingness to engage in vile based conversations about the sexual abuse of children, in two instances with what may be a parent of the child in question.
35I say may, because the evolution of what is referred to above as criminal and moral culpability - sorry, evaluation of what is referred to above as criminal and moral culpability, is difficult in such cases. The intent of the speaker, you in this case in the three instances, without entering into speculation about the speakers in Charges 2 and 3, which I do not need to evaluate in any sense, is a matter which must be approached cautiously in my view. The plea itself in its detail concedes the transmission communication of a type or kind of material orally represented and spoken. This conduct on your part is not isolated and takes place over a period of months. It is engaged in with a number of entities real or otherwise. It discloses some desire for sexual contact with young children.
36This conduct is deserving of denunciation and specific deterrence, and as far as its true intent can be ascertained, and if that can be ascertained, then both community protection and some measure of some appropriate punishment is warranted. The caution which I express is in the knowledge that internet-based chats on communications and effectively anonymous telephone conversations has developed in more recent times, encourage the expression often without a sense of self-restraint or shame, of desire and fantasy. Which while being anonymous, gratuitous, extreme, and provocative, merely enables socially and sexually dysfunctional individuals to engage in sexual gratification, undoubtedly of dubious and corrupt moral quality, but of comparative low-grade criminality and culpability.
37The conduct remains repellent and contumacious but its punishment in my view should be cognisant of the limitations I have endeavoured to express. This will be expanded upon and I refer to the material, which was provided by the defence, and are a motivation for dealing with you, Mr O'Halloran, in relation to Charge 4 primarily, which concerns your possession of child abuse material which will be the basis of the sentence that I will impose.
38It is instructed just to finish this aspect, to note that the prosecution's submissions in relation to the first three charges uses particular language in their submissions at paragraph 12 to 14, what is said to be the criminality involved is described as to Charge 1 as, 'Expressing in detail in graphic terms your desire for penetration with sex with a nine-year-old and ways in which that might be achieved'. In relation to Charge 2, expressing an intent with a mother exposing her child to sexual posing. As to Charge 3, expressing a graphic fantasy relating to oral sex on a nine-year-old girl. Each of these matters are utterly deplorable and abhorrent to any right-thinking person, and to be condemned.
39But I am reflecting the note of caution which I have applied to my own reasoning, in considering the mischief and impact of this type of offence. Certainly, there is an aspect of general deterrence which should aim to discourage people from using the internet and its various applications in a way which turns it into a wasteland of depravity, which distorts the social fabric of our community. But it is a different offence, this transmission, this expression, than the actual possession and transmission of material that is visual or audio/visual and contains child pornography.
40I take your plea into account, as I have mentioned before. A plea was not offered at the very earliest opportunity, but it will reduce your sentence. Although this amelioration will not be given as much weight as an early plea, your plea has a utilitarian value, because it has avoided the running of an expensive and costly criminal trial. It is more evidence of your acceptance of responsibility and facilitates the course of justice. I accept that it is some evidence of remorse. However, this aspect of the plea beyond the point just mentioned, that is, remorse and contrition is a difficult assessment to make.
41I accept that you have shown some remorse and contrition and have expressed such feelings. You asserted to investigators and in relation to the material in your possession, however, you sought to minimise your desire for a nine-year-old. On balance, I accept contrition as being shown and there is a recognition on your part at least of the wrongfulness of your inclinations.
42As to the sentence in Charge 4, the principles to be applied are clearly spelled out by authorities and authoritative pronouncements by Courts of Appeal. In assessing the objective gravity of this offence, I take into account that you held this data which you accessed, obtained, and saved by using a carriage service, across multiple devices. Although the charge relates to possession on the day the police arrested you, you admitted that you had accumulated the collection over years, placing this offence in a proper context, and had used some of it for masturbation and generally for sexual self-gratification.
43262 or 77.5 per cent of the images were in category one as I have described it. This lower category material is not mitigatory in itself and does not diminish the gravity of the offending. An unfortunate perusal of the material samples themselves confirm the good sense in this. In addition, your collection contained 22.5 per cent of material in the next four categories; 41 files particularly in category four which included penetrative sex between adults and female infants. You were aware of the wrongfulness of possessing such material and you admitted masturbating to it.
44Although you do not have prior convictions, you appear to lack fully developed insight into the exploitative nature of child abuse material. Those children depicted in the material in your possession are real children, abused in the most repulsive and vile manner for the gratification of men. Such repugnant images circulate in a depraved market which grows and is easily accessible. They are real victims with untold damage done to them. Ms Lechner noted you struggled to explain why viewing images of and talking about child abuse is wrong, lacking a full understanding that it exploits children and provides an evil market.
45General deterrence is the paramount principle to be applied in this type of offending. In your case, in my view, given the assessment made specific deterrence is also a primary focus. The court's sentence must denounce your conduct and send a clear message to others by wanting to engage in this exploitation by just punishment.
46The legislature's response to this type of offence is significant in terms of how the applicable penalty has progressed, reflecting its 15-year maximum that the internet creates demand of ever-greater depravity and corruption. This material is not only readily available but difficult to detect which demonstrates the importance of general deterrence. The international nature of the problem, the prevalence of the material, those who access this market must be made responsible for that access and their mitigatory factors given in that exercise must be limited in weight.
47I have mentioned already the objective factors which bear upon an examination and conclusion of the seriousness of your offending. I accept your possession is devoid of other features which are often present, such as evidence of you distributing this material and profiting by sale. But those are absences of aggravating factors, rather than mitigating of your offending. Protecting children is of paramount importance.
48As far as my reading of the authorities cited in submissions and many others referred therein, it is clear that a term of imprisonment immediately to be served will be ordinarily expected for such offending. In relation to the different nature of the offending, the offences are directed at different vices and are not identical, in which case I intend to cumulate a proportionate portion of the first three charges onto Charge 4, the base sentence.
49Your pleas are to be accorded appropriate weight as a significant mitigatory factor because it is offered at a time when the criminal justice system has been beset by the impact of the COVID-19 pandemic, which has caused must delay in the prompt delivery of justice and continues to do so. In this environment, the plea has much value. Further, this weight is also significant because it is given in the face of a disposition of imprisonment, when the burden of incarceration is made greater by the impact of the pandemic on the Correctional services, particularly on a prison where lockdowns, periods of quarantine, restrictions on movement, suspension of work, and programs available, rehabilitative and other positive incidents of imprisonment like visits, contacts, and communication generally are likely to be affected. I take all these matters into account.
50The plea has had to be staggered over a period and a number of hearings, because of a matter pertaining to your personal circumstances, which required some clarification and which I allowed in order to have all available material before the court. I will come to this aspect in a moment which covers your medical condition.
51I take into account your personal circumstances and background. You have no prior criminal history. This is a matter to take into account, and although I accept that you have been a man of good character, the nature of the offences particularly related to Charge 4 means that a lack of prior offending and prior good character and familial support and remorse, such as it is, as well as prospects of rehabilitation must be given on the authorities less weight than I ordinarily would for such offending.
52Generally speaking, offenders for offences of possession and control of child pornography and child abuse material have similar backgrounds and are of prior good character; that it is clear from the authorities such as Garside and Watson, D'Allisandro and Delue, that less weight is to be accorded to these factors.
53I take your background into account. You were born in Melbourne, the oldest of three children. Your parents were separated when you were aged about 13 or 14. You have a good relationship with them as well as your sisters. You have never married and have no dependents. Your most recent intimate partner ended the relationship upon learning of these charges.
54You completed Year 10 at school. There were some difficulties at school, perhaps not academic. You were diagnosed with Attention Deficit Hyperactivity disorder in Grade 4, and you were prescribed Ritalin which you took until aged 16. You had many friends but were bullied, especially in secondary school.
55You were born with a condition, Craniostenosis, a birth defect in which the joints between the skull bones, the cranial sutures fuse prematurely before full formation. As a result, as you grew, your skull became misshapen. As some part of the skull grows, and others do not, giving your skull an abnormal shape. This condition in your case required surgery at age two months to correct that defect. As a result, you have always felt self-conscious about the shape of your head, although when speaking to Carla Lechner, a clinical psychologist who prepared a report for the court dated March 30, 2021 you denied being teased on that account.
56Your family life was good. You stayed with your father after separation. He re-partnered and has brought stepbrothers into your life who you reported from time to time did some bullying. Although you lived independently when aged 30 for some time, you returned to live with him recently. You completed a TAFE course, and you were placed on a disability support pension. You have mainly worked in a part-time capacity and at Woolworths as a shelf stacker and trolley boy for 19 years. You resigned that position in August of last year, when you disclosed these current matters.
57Ms Lechner provided a report to the court in which she outlined a personal drug and alcohol history. She refers to the psychometric testing she conducted, discusses the offending behaviour, and outlines a risk assessment, together with treatment considerations. I will summarise her findings and her opinion.
58There was no evidence of psychotic process or elevated depression. You have not suffered physical trauma or any serious head injuries because you have avoided contact sports. You do not have a broad social network outside of family members, who remain supportive of you. You feel low confidence around women and have poor body image. At the time of the offending, you suffered a romantic rebuff by a woman you were interested in. You denied use of illicit drugs and of late, your alcohol consumption has increased but not to levels of concern.
59The K-10 psychological distress scale test found you to be likely to be mildly mentally unwell. The Beck Depression Inventory score fell into the mild to moderate range. As to your offending, you told Ms Lechner that you began to have an interest in nudism and when you visited websites dedicated to it, images of children started to arouse you. Soon thereafter, you joined a chatroom online which gave you access to child pornography.
60Images arouse you as well as talking about fantasies regarding children. You told Ms Lechner you ceased such behaviour by distracting yourself or looking at adult images. Ms Lechner outlined your sexual history and she reported you understood why sexual contact with minors is wrong. You struggled to understand, explain why viewing images of and talking about child abuse is wrong, however, lacking an understanding that it provides a market and exploits real children.
61You located your offending at the same time as you had perceived deceptions in relationships, although your perceptions may have been inaccurate.
62As to the risk of reoffending, Ms Lechner points out that there is currently no specific measure to provide a dynamically and actuarially based protocol for assessing risk of recidivism for offenders like you. But she referred to relevant literature, p5. This would tend to indicate that online sexual offending recidivism is low. The research suggests strongly that contributing factors to increase risk are similar to contact offenders; social deviance, psychopathy, early onset of offending, substance issues, mental health issues, poor interpersonal competence, and a history of criminal behaviour are all relevant. Time spent online accessing deviant pornography and diversity of content have not been empirically tested but appear related to risk.
63You appear to fulfill some of the criteria of sexual deviance, presenting with symptoms of a paedophilic disorder and poor interpersonal competence. Your mental health issues are not at a clinical level. In view of this, her opinion is that you present as a moderate low risk of reengagement in such behaviour if you are not engaged in treatment. You understand your sexual interests are wrong and appear to have motivation to address those interests.
64At the time of writing her assessment, you were engaged in psychotherapy with a psychologist once every two months, after initially seeing her fortnightly. Although, no explanation was given to me as to why the frequency changed over that period. This therapy was focused on, 'Response prevention therapy and anxiety management'. In Ms Lechner's view, more frequent sessions are advisable.
65You have a longstanding belief that you suffer a mild intellectual disability, which Ms Lechner says was not found to be the case with recent neuropsychological testing. Despite believing you were slow; you have had a steady employment history and intimate relationships. You are said to be disconnected from your emotional world, tending to deny or minimise the extent of your psychological distress. You expressed shame and regret and report experiencing fewer fantasies regarding young children. You would benefit, she says, from counselling which could target your deviant sexual interests.
66Your immature social skills would make your incarceration more difficult to manage. You are also fearful of sustaining injury to your head, in the light of what you believe is your vulnerability.
67Dr Trebeir, a clinical neuropsychologist prepared a helpful report dated 23 December 2020. Referral was made in the context of past reports which suggest that you have an intellectual disability. His assessment, neurological assessment was one in which you performed in the low average to average range on an overall level of your intellectual function. Contrary to childhood medical records, Dr Trebeir found no evidence that you have a pervasive and longstanding learning difficulty. He found your psychological difficulties do not meet the threshold for a formalised mental health diagnosis. He confirmed you had no history of seizures; you had never undergone brain imaging studies during adulthood for any reason.
68This last comment is relevant in relation to the issue which took some time during the plea; that is whether and to what extent reclusion may or could expose you to physical injury related to your Craniostenosis. And as a result of this query, how that would impact on any sentence imposed.
69Your mother wrote a letter to the court. In it, she writes that as a child your parents were told that you would never play sport due to this condition. She writes of the insults you endured because of it at school. She mentions your efforts in psychotherapy, that you have left your job, and that you were exposed to pornography aged 9 but does not say in what circumstances. She is fearful that a blow on the head will have serious repercussions for you.
70This letter unfortunately does not take the matter much further, having adjourned on the first occasion. The defence could not formulate anything more than a hypothesis of danger. The adjournment was to seek a CT scan without which an opinion could not be formulated beyond speculation. Unfortunately, no such scan was able to be done.
71Dr Poole is a GP at the local clinic which you have used. His letter only confirms the diagnosis and corrective surgery which took place. The file from the Royal Children's Hospital corroborates the existence of a sagittal stenosis. This is the suture that runs along the top of the head, from front to back. This is a common type of Craniostenosis.
72The letter dated 11 May 2021 from Professor Gall, a clinical associate professor and consultant forensic physician indicated he could not in the absence of a CT scan to view the quality and completeness of the skull bones; that he could not engage or express an opinion as to the extent of your head to vulnerability by assault or contact or injury. Apart from this, the associate professor indicated this area of opinion lies outside his area of expertise.
73Susanna Cop, a psychologist, wrote a brief note dated 23 April 2021, confirming you had participated in psychological therapy between 3 June 2020 and April 2021. She writes that you worked on, 'Response prevention strategies and desensitisation therapy to arrest the intensity of emotions related to past experience'. Although she did not delve into detail as to those, or how in the long-term such therapy may impact upon you and upon your paedophilic disorder. None of that is mentioned in her report.
74However, I take all these accounts, reports, into account, both as to the issue which was the focus of defence at the plea; that is, the impact of the Craniostenosis and your prospects of rehabilitation. As to the condition, there is little evidence upon which the court can proceed, except to indicate that in its order to the Correctional authorities, this may be an issue or one of perceived vulnerability, which will impact on your incarceration from a management point of view.
75The court must have some confidence that this matter will be borne in mind by the Correctional authorities. I also accept that your own perception of your vulnerability whether real or imagined will impact on your reclusion and may impact upon your burden of imprisonment. I will take this into account.
76As to these efforts as to addressing your situation by counselling, although they do not appear to have focused exclusively on your deviant disorder, they are positive efforts which should continue once you are released.
77In sentencing you for Charge 1 pursuant to s16BA of the Crimes Act 1914, I take into account the schedule charge which relates to 8 October transmission. In that context, I am satisfied that that has been filed in court, a document for the purposes of s16BA(1) signed on behalf of the Director or by him and by you. That copy was given to you, in all the circumstances, it is proper to do so, as you have admitted your guilt in relation to that matter and wish that matter to be taken into account in passing sentence. I note sub-ss4 and 5 in not imposing a separate punishment for that offence.
78Pursuant to sub-s8, I certify a bundle of documents filed in court, the offence taken into account. Taking into account of this offence has the effect of giving greater weight to specific personal deterrence and the retributive aspect of the sentence. Principles pertaining to the applicable maximum sentence of the primary offence and totality limit the extent to which a primary sentence may be increased.
79However, such a matter is not merely noted. I have considered the matters set out in part 1B of the Crimes Act in particular ss16A (1) and (2), a non-exhaustive list of factors to be taken into account. In addition, by virtue of s16A2(AAA) of the Crimes Act in relation to those child sex offenders, I must take the objective of rehabilitation into account in addition to other matters and I do so.
80I consider as has been said by the professional reports submitted that if you receive ongoing treatment, your prospects of rehabilitation are reasonable, and in this context, I will order conditions about treatment and rehabilitation, specifically referred to your disorder.
81Under s17A(1), I am satisfied that a sentence of imprisonment is appropriate in this case.
82Mr O'Halloran, in relation to Charge 1, you are convicted and sentenced to nine months' imprisonment. In relation to Charge 2, you are convicted and sentenced to six months' imprisonment. In relation to Charge 3, you are convicted and sentenced to six months' imprisonment. In relation to Charge 4, you are convicted and sentenced to 15 months' imprisonment.
83As I am bound to do, I will outline the commencement periods of these before going onto the recognisance release. I order that the sentence on Charge 4 commence today on 25 August 2021. I order that the nine-month sentence on Charge 1 commence on 25 July 2022. I order that the sentence of six months on Charge 3 commence on 25 December 2022 and I order that the sentence on Charge 3 of six months commence on 25 February 2023, which will conclude on 25 August 2023, making the 24 months of the sentence.
84In doing so, I have cumulated five months of the nine-month sentence, two months of the six-month sentence on Charge 2 and two months of the six-month sentence on Charge 3 upon the base sentence of Charge 4.
85I order that you be released on recognisance after serving 12 months. The order will be for a period of three years and in the sum of $3,000 to receive then psychological treatment.
86But for your plea, I would have sentenced you to 36 months with a 20-month non-parole period.
87Mr Wilson, I note that the calculation of commencement periods and overlapping of those sentences is difficult, but I have spent a lot of time endeavouring to get it right.
88MR WILSON: Yes, Your Honour. Certainly, the cumulation you have announced that adds up to two years. I have not checked the precise commencement date.
89HIS HONOUR: I have done it for myself diagrammatically and what I have done in effect, if I can explain it for the transcript is that the sentence of 15 months begins today. Before its expiry, in fact, in July of next year, the nine-month sentence comes into operation and therefore overlaps the first sentence by five months, thereby cumulating itself onto it. Then the six-month sentence begins in December, which cumulates two months, that is two months of the overlap ending in June of that year and then the further six months commences in February 2023, with a further two-month overlap ending in August.
90MR WILSON: Yes.
91HIS HONOUR: Thereby giving you 24 months with a recognisance release after service of 12 months. My associate has prepared the documents in relation to or will prepare the documents in relation to the recognisance release order and as I - I am not sure whether the document that I have certified, Mr Wilson, has already been - I took it that it has already been signed by the Director and by Mr O'Halloran.
92MR WILSON: Yes, I had a copy of a document. I think the signed copy from our side was provided at the initial hearing and it was faxed through to Mr O'Halloran's solicitor and I believe that came back signed.
93HIS HONOUR: Well in any event, I have signed a copy document. I can have my associate bring me a copy and I will again certify by signature that particular copy if it is required.
94MR WILSON: Yes, thank you.
95HIS HONOUR: There are not any other ancillary orders, are there?
96MR WILSON: There is the forfeiture order which I understand was not opposed and a copy has been provided to your associate.
97HIS HONOUR: Yes. Well, I will sign that forfeiture order when it is provided to me.
98MR WILSON: Thank you.
99HIS HONOUR: Mr Cronin, is the effect of the order clear?
100MR CRONIN: Yes, Your Honour, it is, thank you.
101HIS HONOUR: Well, the fact that Mr O'Halloran is in court may allow you some time to just speak to him if you wish but he will have to be taken down at some point.
102MR CRONIN: Yes, Your Honour, thank you.
103HIS HONOUR: Yes, thank you.
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