CDirector of Public Prosecutions v Scott
[2022] VCC 499
•8 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01855
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| STEWART SCOTT |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 April 2022 |
DATE OF SENTENCE: | 8 April 2022 |
CASE MAY BE CITED AS: | CDPP v Scott |
MEDIUM NEUTRAL CITATION: | [2022] VCC 499 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Use carriage service to transmit child pornography material contrary to sub-section 474.19(1)(a)(iii) of the Criminal Code (Cth) – possess child abuse material obtained using carriage service contrary to sub-section 474.22A(1) of the Criminal Code (Cth) – possess cannabis
Legislation Cited: Crimes Act 1914 (Cth); s16A(2), 16AC, s17A, S20(1)(b)
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to 12 month’ imprisonment with a 3 year recognisance order in the sum of $2,000.
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr C. Sebastian (Plea) Ms C. Caretti (Sentence) | Commonwealth Director of the Office of Public Prosecutions |
For the Accused | Mr B. Newton | Chris McLennan & Co. Barristers and Solicitors |
HIS HONOUR:
1Stewart Scott, on 6 April 2022 at the County Court of Victoria in Melbourne you pleaded guilty to the following charges on Commonwealth indictment, CR-21-01855:
·Charge 1, is use a carriage service to transmit child pornography material. This charge has a maximum penalty of 15 years' imprisonment.
·Charge 2, possess child abuse material obtained by using a carriage service. This charge has a maximum penalty also of 15 years' imprisonment.
2A related summary charge of possessing cannabis was transferred to this court pursuant to ss145 and 242 of the Criminal Procedure Act 2009. You consented to the related summary charge being heard and pleaded guilty to that charge.
3You admitted your prior criminal history. Your criminal history is related to dishonesty charges and not to sexual offending.
4You have spent two days in pre-sentence detention on remand whilst awaiting this sentence.
The Circumstances of Your Offending
5The prosecutor read from and tendered a summary of prosecution opening for plea, which was Exhibit A, and a statement of Scott Chaplin, dated 5 April 2022, which was Exhibit B.
Charge 1
6The prosecution's case is based on admissions made by you to the police in your record of interview with them. There is no independent corroborative evidence to prove that charge. The offending occurred between May 2017 and 20 May 2019. You admitted to possessing child pornography and obtaining it through a platform. The images were of, 'Just young kids, you know, getting to the point where they were too young'. You told police that you shared a few of the images on Moko chat, adult chat and teen chat. You said you shared the abuse material once or twice.
7Your method of sharing the child abuse material was to screenshot the original image and send it to another individual. The evidence does not prove the number of images that were transmitted, the frequency of the transmissions or the level of depravity depicted in the transmitted child abuse material. The prosecutor conceded that the case against you is based solely on your admissions to the police in the course of your record of interview with them.
Charge 2
8On 24 March 2021, you were arrested at your place of work. Your Samsung phone was seized by police. The phone was forensically examined and 159 images of child abuse material featuring prepubescent children, that is under the age of 13 years, were located on it. A further 352 child abuse images and one video featuring children under the age of 18 years of age were also located on your phone. The images included children under the age of 10 who were sexually penetrated by an adult finger or penis to all orifices. These images are fully described in Exhibit B. There were also Category 2 child abuse material with very young children in sexual poses and sexual penetration of a 13 year old child.
9The child abuse material is depraved and necessarily debases and abuses young people, the subject of those images. You admitted to possessing these images to police in the record of interview.
Summary Charge 3
10At the time of your arrest on 24 March 2021, 29 grams of cannabis was seized from you at your residence. You admitted to the police that the cannabis was your drug.
Your Personal Circumstances
11You turned 38 years of age on the day of your plea hearing. At the time of your offending you were between the ages of 33 and 36 years of age. You admitted a criminal history which encompasses the years 2001 to 2016. The offending was for dishonesty charges and was not directly relevant to the charges you are to be sentenced for in this proceeding.
12You were born in Preston. In effect you were raised by your mother. You have a younger brother, Dwayne. Your father was mainly absent from the family due to intermittent periods in gaol and generally drifting, as you described him, a no hoper. This description was given to Harvey Abbott, a psychologist who has assessed you for the purposes of this plea.
13Due to your family's poverty your mother moved to live in the caravan park at Alexandra. You went to primary school there and later to high school to the Year 9 level. You left school to commence work, no doubt to contribute to the family funds.
14At age 12 you were placed in foster care. Your mother ultimately got permanent rental accommodation in Eildon. You were sexually abused when you were a 12 year old child. Your abuser, Mr Byrne, was dealt with in the Mansfield Court, according to your mother, who confirmed it in court before me at the plea hearing. Mr Byrne is now dead. You have never received any psychological treatment nor sought any form of compensation for your sexual abuse. You put that dreadful experience behind you and went to work.
15You have a steady work record from the young age of 15 years up until effectively your arrest. Your first job was sorting rubbish at the local tip. Between the ages of 16 and 20 you worked in a sawmill at Alexandra until you were injured in an employment accident.
16Between 21 and 22 you worked as a truck driver, delivering supplies to the ski resorts in the Mansfield area and after that between 22 and 24 years of age you commenced an apprenticeship as a chef. You did two years of that apprenticeship and then quit. You continued to work as a cook and kitchenhand in a number of hospitality venues in the Eildon area for the following three years.
17By the age of 25 you had a further change of employment. You commenced working in a funeral home services in Alexandra. This was around the time of the Black Saturday bushfires in 2011.
18By July 2011, you had moved your employment to Le Pines in the metropolitan Melbourne and remained there until 2013. In 2013, you then moved your employment to Classic Funeral Services in Dandenong and remained employed there until your arrest in March 2021. Your employer, Ms Le Boeuf, attended court here to support you and also provided the court with a reference which was tendered as part of Exhibit 3.
19Your offending occurred whilst you were employed at Classic Funerals. After your arrest you returned to live with your mother in Eildon and worked as a volunteer at the wildlife shelter.
20You have had two significant relationships. The first commenced when you were 19 years old and lasted for approximately six years. From that relationship you have two daughters, now aged 17 and 15, who live with their mother in Shepparton. The second relationship commenced in 2010 and again lasted for approximately six years. You have an 11 year old son and a nine year old daughter from that relationship, both of whom live with their mother in Ballarat. You have little contact with them.
21By 2017 you were living alone in the factory at Classic Funerals. Your living circumstances were less than ideal, but by the time of your arrest you had secured private rental accommodation in Doveton.
22On the day of your arrest you were interviewed. You made full admissions to your offending. Your frank admissions in respect of the Charge 1 offending is the only evidence the prosecution have to establish that charge. A day or two later you were admitted to Monash Hospital Psychiatric Unit. You remained there for two weeks on account of suicidal thoughts and ideation.
23You have been examined by psychologist, Harvey Abbott. He prepared a report dated 4 April 2022. It was Exhibit 2. Mr Abbott's opinion was that your mental state was indicative of depression and anxiety. He recommends that you undergo cognitive behavioural therapy. He does not assess you as having paedophilic tendencies.
24It was submitted on your behalf that you started using methylamphetamine at the age of 25 years. You were using this drug at the time of your offending. You had ceased using methylamphetamine in January 2021, two months before your arrest. You have used cannabis for the whole period from 25 years onwards, and that is substantiated by Summary Charge 3, where you have still had it with you when you were taken to your home.
25You have been on remand for two days and this is your first time in custody.
Sentencing Considerations
26Charges 1 and 2 are Commonwealth charges. In respect of Charge 2, s20(1)(b) of the Crimes Act 1914 (Cth) (“the Act”), requires an immediate term of imprisonment to be imposed on an offender for child sex offences unless the offender can establish exceptional circumstances. Mr Newton, counsel on your behalf, did not submit exceptional circumstances could be made out in your case. Appropriately, he submitted the mitigatory circumstances of the offending and your life circumstances and upbringing call for a level of mercy in the ultimate sentence imposed on you.
27Section 17A of the Act provides that a court shall not pass a sentence of imprisonment for a Federal offence unless it is satisfied, after having considered all the other available sentences, that no other sentence is appropriate in all the circumstances of the case.
28In s16A(2) of the Act, sets out a non-exhaustive list of the factors a court is required to consider when sentencing a Federal offender such as yourself. Some of those matters include the following:
·(a) the principles of general deterrence;
·(b) the nature and circumstances of the offending, including your moral culpability;
·(c) the maximum penalties applicable to the charges that you have pleaded guilty to;
·(d) if the offence forms part of a course of conduct consisting of serious criminal acts then that course of conduct;
·(e) the fact that you have pleaded guilty to the charges;
·(f) the degree to which you have cooperated with law enforcement agencies in the investigation of the offences themselves;
·(g) the deterrent effect of any sentence or order under consideration may have on you personally, that is specific deterrence;
·(h) the need to ensure that you are adequately punished for your offending;
·(i) your character, antecedents, age, means and physical and mental condition;
·(j) the probable effect of any sentence or order under consideration may have on your family or dependents;
·(k) your prospects of rehabilitation; and
·(l) the fact that prison is, as I said before, the last resort, and in your case this is your first experience of prison.
29Section 16AC of the Act also requires a sentencing court to take into account the level and degree of assistance and cooperation you have given the authorities. In respect of Charge 1 your cooperation and admissions in the record of interview are the whole of the evidence against you in that charge. The prosecutor conceded any electronic evidence to prove Charge 1 had been lost. You have followed that cooperation with your plea of guilty to that charge here before this court.
30You have pleaded guilty to these charges at the earliest time in these proceedings. Your plea of guilty and cooperation with the police indicate and demonstrate some remorse on your part, and I accept that you are remorseful for your offending.
31Your plea of guilty has utilitarian value. You have allowed the orderly administration of justice to take place. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process which has been set up to protect the community. As I said before, you have no direct relevant criminal history and there are no charges outstanding.
32The Court of Appeal in the case of Worboyes v The Queen reported at [2021] VSCA 169, set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic and even more so in the sentencing process. These considerations were reinforced by the Court of Appeal in the case of Rossi v The Queen [2021] VSCA 296, which recited paragraphs 35 to 39 from Worboyes case and highlighted the following. I am not going to read out all of those paragraphs but I am going to read out some of them:
'We therefore consider that whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances and concomitantly as attracting an augmented, mitigatory effect on the sentence, simply because the plea will benefit the beleaguered administration of justice, given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and probable amelioration of sentence'.
33The Court of Appeal further stated:
'For these reasons we consider that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of a sentence.’
34The Worboyes discount, as referred to, has particular application in your case because you have on bail for all of the time since your offending.
35The transmission of child pornography and the possession of child abuse material are serious offending, that parliament has fixed a maximum term of 15 years' imprisonment in respect of each of those charges. In respect of Charge 1 you admit to sharing child pornography once or twice. Your method of transmission was by screenshotting the original image and sending it to another individual. The images were of children between six and 10 years of age. The category or level of depravity of the transmitted images was not clear on the evidence before this court.
36In respect of Charge 2 you possessed 511 images and one video. The level of depravity in respect of Category 1 and Category 2 child abused material was set out in a statement of Scott Chaplin, dated 5 April 2022 and was Exhibit B on this plea. I will not repeat it in full here. In simple terms, the material or images are depraved and show clearly the abuse of children between the ages of four and 13 years by penile penetration. They also show other images.
37The primary sentencing consideration in offences of online exploitation of children by possession or sending images is general deterrence. Whilst it is not alleged you have made a financial gain by your offending, you never-the-less contributed to creating a market for the continued corruption and exploitation of children.
38Specific deterrence is also a fact in your sentencing process. You have offended over a period of three years and hence the offending is not a one off lapse into criminality of this sort. Further, you retained possession of the images on your phone, indicating you gained some sexual gratification and intended to continue using it or to view it.
39I have previously referred to your prior criminal history for dishonesty offences. You have no prior criminal history for sexual offending or offending against children. The fact that you have no prior history for sexual offending against children gives some comfort that with the right support and treatment your prospects of rehabilitation will be improved. Given your criminal history, however, I assess your prospects of rehabilitation as guarded.
40I have had regard to the comparative cases tendered by the learned prosecutor. Each case is different in its own facts and each offender has different personal circumstances which lessens the benefit of those cases to the sentencing task in this particular case. Each case has to be assessed individually and comparative cases are indicative or guidepost sentences at best.
41I have regard to the fact that you have been supporting your mother, who has poor health, whilst you have been on bail for these offences. Your incarceration does not reach the level requiring a court to exercise mercy due to your mother's ill health. She attended court here on the day of your plea to support you and I note that she is on the video link, watching this sentencing process. She also prepared a reference which was Exhibit 3 for your plea hearing, and I take the matters she alerted to in that reference in sentencing you.
42Charge 1 and 2 arise from common actions on your part, transmitting and possession of child pornography or child abuse material. It is just inappropriate to have the two charges dealt with in the one penalty.
43The principles of general and specific deterrence are paramount in this sentencing process. The principles of just punishment and denunciation of your conduct are also applicable. The community demands that the law protects children and a just sentence dictates that a term of imprisonment to be actually served is the only appropriate sentence for Charges 1 and 2.
44On Charges 1 and 2 on the indictment you are convicted and sentenced to an aggregate sentence of 12 months' imprisonment. Further, you are placed on a three year recognisance release order in the sum of $2000 and you are to be released from prison after serving six months of that 12 months' sentence.
45You are to be placed on the sex offenders register for a period of 15 years.
I order that the - now, this is the part I want some assistance with, Madam Prosecutor. Is the sentence commenced today or did it commence on Tuesday, two days ago?46MS CARETTI: Your Honour, it should commence today.
47HIS HONOUR: Yes.
48MS CARETTI: Your Honour would simply declare the two days of pre-sentence detention as time served.
49HIS HONOUR: Thank you. I order that this sentence commences today, which is 8 April 2022. I further declare that you have served two days pre-sentence detention in respect of this sentence.
50Pursuant to s6AAA of the Sentencing Act, in respect of Charges 1 and 2, but for your plea of guilty I would have sentenced you to a period of two years' imprisonment with an 18 month non-parole period.
51On Summary Charge 3 you are convicted and fined $100.
52Is there anything further other than - how do we organise the recognisance?
53MS CARETTI: Your Honour, we did have one sent through just prior to
9 o'clock. As my friend would have explained, who is on the link, the other prosecutor, there are some mandatory conditions that now attach to recognisance release orders. Essentially they just relate to supervision, they relate to being assessed for a sex offender treatment course, and those need to be explained to the accused. Would Your Honour be assisted by - - -54HIS HONOUR: I had better have a look.
55MS CARETTI: This was actually printed by your associate but it is a draft.
56HIS HONOUR: Thanks.
57MS CARETTI: If I might hand that back to you now.
58HIS HONOUR: Thank you.
59MS CARETTI: Thank you for that.
60HIS HONOUR: This order, this draft order just handed to me, does not set out what I have ordered, and that is that his sentence is 12 months.
61MS CARETTI: It does not, Your Honour. I will put that in now.
62HIS HONOUR: In another part, does it?
63MS CARETTI: I will input all of those details now, but I just wanted to draw Your Honour's attention to those mandatory conditions.
64HIS HONOUR: All right.
65MS CARETTI: So that they can be explained.
66HIS HONOUR: Yes, all right. I have to give him an address for the - I just note here the Community Corrections Centre, which is that? Where do I send him?
67MS CARETTI: Your Honour, it will be the closest address at Community Corrections Centre to the offender's home. I might defer to my learned friend on that point.
68HIS HONOUR: Eildon. Eildon is where his mum lives, so that is where he last lived. So that will be in Seymour or Shepparton or somewhere like that.
69MR NEWTON: Yes.
70HIS HONOUR: I think I will just - - -
71MR NEWTON: Mansfield.
72MS CARETTI: Your Honour, perhaps if it assists, I can put all of those details in. If Your Honour were minded to give me a few minutes to do so then I can have another copy presented to Your Honour and we can perhaps - - -
73HIS HONOUR: Yes, thanks, rather than - yes, we will do that. I might just stand down whilst that is organised.
74MS CARETTI: As Your Honour pleases.
75HIS HONOUR: I will just explain that to Mr Scott. Mr Scott, there are two sets of paperwork we have to organise here. One is the recognisance itself, which is the reference to my three years that I said before. Just so it is clear to you, you are to serve six months, that is it, all right. After that you have got a further six months hanging over your head if you breach the recognisance, and $2000. That is what that recognisance is about, all right. Mr Newton will explain all this to you but I am just giving you a potted version, but I need that recognisance sorted out so I can read out the mandatory parts, mandatory conditions of that recognisance to you so that I know you understand them, and the other part is the sex offenders register, which is for a period of 15 years from today, and that has a whole lot of conditions which I will not read out to you, but you will have to sign at some stage. Yes, but I will just stand down whilst that is happening. So the link will have to remain open.
76MR NEWTON: Before Your Honour leaves the Bench.
77HIS HONOUR: Or sorry.
78MR NEWTON: I am just mindful that the link time is precious. May I have the opportunity of speaking with my client whilst Your Honour has left the Bench?
79HIS HONOUR: Yes.
80MR NEWTON: I have got no issue with the prosecutor remaining in the court. It will not - - -
81HIS HONOUR: Yes, certainly.
82MR NEWTON: I will just clarify he understand the sentence.
83HIS HONOUR: Thanks. No, no, thank you, I was going to give you that opportunity but I - is it shut off at 10 o'clock, is it?
84MR NEWTON: Your Honour, we were moved forward to 9 o'clock because I understand there is a pressure on the resource at their end.
85HIS HONOUR: Right.
86MR NEWTON: Whether that is even - - -
87HIS HONOUR: It is 20 to 10 now.
88MR NEWTON: Yes, so, Your Honour, I will use the time to speak with him now whilst the prosecution send you the document.
89HIS HONOUR: Yes.
90MR NEWTON: And I will explain - foreshadow what is going to happen.
91HIS HONOUR: All right, I will just wait outside.
92MR NEWTON: As Your Honour pleases.
93(At 9.39 am His Honour left the Bench.)
94(At 9.50 am His Honour returned to the Bench.)
95HIS HONOUR: I will just read this recognisance out to you. As I said before, the court orders are that you be released after serving six months of a term of imprisonment by a recognisance of $2000 and to comply with the following conditions: you are to be of good behaviour for a period of three years. The mandatory conditions under s21B of the Crimes Act are as follows: be subject to the supervision of a probation officer, deputy commissioner or Community Corrections Services and sex offender management or their nominee for a period of three years; and to obey all reasonable directions of the probation officer or the deputy commissioner or Community Corrections Services and sex offender management or his or her nominee; and to not travel interstate or overseas without the written permission of the probation officer, deputy commissioner, Community Corrections Services or the sex offender management or his or her nominee; and (e) to undertake such treatment and rehabilitation programs that the probation officer, deputy commissioner, Community Correctional Services or sex offender management or his or her nominee, reasonably directs; and to report to the Seymour Community Corrections Centre located at 32 Wallis Street in Seymour within two clear working days upon your release from custody; to report to and receive visits from the Community Corrections officer or officers; and to notify an officer of the specified Community Corrections Centre of any change of address or employment within two clear working days after the change has been made.
96In respect to the sex offenders program, to attend for assessment and then if assessed as suitable, treatment for sex offender programs or programs to reduce the reoffending as directed by the deputy commissioner, Community Corrections Services and sex offender management and/or their nominee.
97And I read this part out so it is all clear to you: 'This order has been issued because you, Stewart Troy Scott, have been charged with the following federal offences. That is using a carriage service to transmit child abuse material, contrary to s474.22(1)(a)(ii) of the Criminal Code Commonwealth, and
(ii) possess child abuse material obtained or accessed using a carriage service, contrary to s474.22A(1) of the Criminal Code.98The court, that is me, has sentenced you to a term of 12 months' imprisonment and the court has decided that you are to be released after serving six months of the sentence if you comply with the conditions of the order, and I will sign that. I cannot sign the recognisance part of that document until he has.
99MS CARETTI: Your Honour, I wonder whether perhaps the order could be faxed to the prisoner then signed by Your Honour once the offender has entered into it.
100HIS HONOUR: Yes.
101MS CARETTI: That might be the best course.
102HIS HONOUR: And that will also apply to his acknowledgment about the sex offenders register documents that he will be sent.
103MS CARETTI: Yes.
104HIS HONOUR: My associate can organise that but I have signed that order, so thanks.
105MS CARETTI: As Your Honour pleases.
106HIS HONOUR: Was there anything further?
107MR NEWTON: No, Your Honour.
108HIS HONOUR: Thank you. Thanks, Mr Scott. What will happen is sometime today, hopefully soon, you will be given some documents to sign to acknowledge and they will be sent back to the court. Thank you. Thanks, officers.
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