CDirector of Public Prosecutions v Smith

[2024] VCC 1140

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00020

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBIN JAMES SMITH

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2024
DATE OF SENTENCE:	25 July 2024
CASE MAY BE CITED AS:	CDPP v SMITH
MEDIUM NEUTRAL CITATION:	[2024] VCC 1140

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              SENTENCE – Use of Artificial Intelligence to produce child abuse material – Commonwealth and State offences - Use a carriage service to transmit child abuse material – Plea of guilty

Legislation Cited:      Crimes Act 1958 (Vic) s 5, s 20(1)(b)(ii), s 51; Criminal Code Act 1995 (Cth) s.16A(2), s 474.22(1)

Cases Cited:DPP (Cth) v Garside [2016] VSCA 74; R v. Edwards [2019] QCA 15; Heels v R [2024] VSCA 133; DPP v Breadal [2024] NSWCCA 75; R v Kelly (Edward) [1999] 2 All ER 13; R v Tootell ex parte AG [2012] QCA 273

Sentence:                  Total global effective sentence of 13 months imprisonment, to be released on own recognizance after having served 6 months in custody.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Zoe Hough	Commonwealth Director of Public Prosecutions
For the Accused	Amelia Beech	Slades & Parsons Criminal Lawyers

HER HONOUR:

1Robin James Smith, you have pleaded guilty to:

·        One Victorian charge of producing child abuse material;[1] and

·        One Commonwealth charge of using a carriage service to transmit child abuse material.[2]

[1]Crimes Act 1958 (Vic) s 51.

[2]Criminal Code Act 1995 (Cth) s 474.22(1).

2You have no previous criminal history, and nothing subsequent is alleged.

3The circumstances of your offending are set out in detail in the Summary of Prosecution Opening for Plea dated 8 May 2024,[3] the accuracy of which you accepted through your counsel.  

[3]Exhibit A

4The following is a brief summary of that offending:

5The offending in charge one of producing child abuse material occurred over a period of almost eight months in 2022-23. You utilised an Artificial Intelligence (A.I.) software program named “Stable Diffusion” on your personal computer and ‘Synology’ disk station,[4] to generate child abuse material.

[4]         A device that operates as a private cloud, that stores and backs up files securely.

6The A.I. software functions by generating photo realistic images, based on text or image inputs, that are manually inputted by the user. These ‘search parameters’ are automatically saved on a folder in the software, alongside the generated image.  This conduct comprises Charge 1, that of producing child abuse material.

7For example, the search parameters you inputted to generate one of the child abuse images was “a stunningly beautiful 8-year-old Russian girl”, “petite”, “topless”, “bare midriff”, “elegant pose”, “exotic”, “atmospheric lighting”, “cinematic composition” and “detailed”.

8A total of 793 unique images classified as child abuse material were found saved between your devices, with many images broadly depicting prepubescent and pubescent female children posing in a sexually explicit manner, either naked, partially naked or wearing adult lingerie. You inputted more than 20 different parameters to generate these photos.

9Charge two of transmitting child abuse material occurred over a 44 day period in 2023. You chatted online via text platforms with an online covert operative who assumed the identity of “Bianca”, purporting to be the mother of a 6-year-old female child named “Maddy”. Your offending involved text based material, and did not include images or videos.

10You conjured up a hypothetical scenario, where you would rent an Airbnb in Mornington with a hot tub and play a game with “Maddy”. In the game, if she lost, you would ‘stand her up on the hot tub step and slowly take off her bikini bottom’.

11You disclosed numerous sexually explicit actions you desired to perform on “Maddy”. This included masturbating the six year old girl, asking if the child would like you to perform cunnilingus and asking if “Bianca” could teach her to perform fellatio.

12You ceased this communication on 10 May 2023.

13You willingly opened your phone for investigators when they executed the search warrant.

14The production of child abuse material is a serious offence, reflected by the maximum penalty of 10 years imprisonment imposed by Parliament.

15The relevant factors outlined by the Court of Appeal in Garside[5] to determine the objective seriousness of offending relating to possession and access of child abuse material also have some application in determining the seriousness of a charge of producing such content. 

[5]DPP(Cth) v Garside [2016] VSCA 74 at [23]

16Relevantly, whilst the nature and content of the material you created using A.I. is explicit because the images are naked or semi-naked depictions of children they do not depict sexual activity. There is no evidence that you produced these images for sale, further distribution or profit. You produced them for personal use and there is no evidence that any actual children were depicted, and therefore victimised. Whilst the number of images is not especially high for offences of this type, you produced them over a considerable period of time, approaching eight months.

17The use of AI to generate pornography is in its relevant infancy but is fast proliferating. In the sense that there is no evidence that your content did not use images of real children it can be likened to pornography using animated cartoons or drawings.

18Whilst no real children were harmed in the making of these images, Courts have observed that child exploitation material tends to normalise exploitative sexual activity involving children[6]. It serves to fuel the demand for such material, and may tend to encourage viewers to take a step further and move from the fictitious to the real world, and harm real children. In your case you moved from the production of A.I. child abuse material for personal use, to the transmission of text based material with a live recipient.

[6]For example as observed in R v. Edwards [2019]QCA 15 at [61]

19Parliament has also reflected the seriousness of the offending captured by charge 2 which attracts a maximum penalty of 15 years imprisonment.

20Your conduct involves the persistent transmission of sexually explicit and aberrant text based communications on 5 of the 17 occasions you communicated with the covert operative over a total period of 44 days. You did so for the benefit of your own sexual gratification. This offending involved an escalation in seriousness from that in charge 1 but I note that you voluntarily ceased the communications.

21Whilst you offered no inducements, nor made any threats, future meeting with and offending against a young child was a persistent theme of your communications. Your offending was unsophisticated in that you disclosed certain true aspects of your life, such as your employment and your actual photo, but you did take steps to conceal your identity by using a false name. Whilst you had no prior relationship with “Bianca” or her daughter, the age differential between you and “Maddy” was substantial. As “Bianca” was a covert operative, no real child was harmed.

22Whilst the CAM was text based, the Court of Appeal has recently remarked “the distribution of prose describing child sex abuse, especially where it is done for the purposes of sexual gratification, has the tendency to normalise or encourage child sex abuse, ignore the harm that such abuse causes and undermine the unequivocal societal standard that such abuse is abhorrent”.[7]

[7]Heels v R [ 2024]VSCA 133.

23Whilst recognising the inherent seriousness of both of these offences, your conduct is far from the most egregious example of offending commonly charged under these provisions. Objectively your conduct sits at the low mid-range of seriousness for such offending.

24Your moral culpability is reduced by your genuine remorse, indicated by your early plea of guilty and report from your long-term treating psychologist and from references tendered by your family. You otherwise enjoy good mental and physical health and your overall moral culpability for this offending is moderately high.

25Your Counsel in her comprehensive written and oral submissions submits that the reasons for your offending may never be entirely clear, but your declining psychological wellbeing as a result of colliding life stressors may help to explain your actions. She notes that since the offending, you have done everything within your power to make amends. You have undertaken treatment, pleaded guilty and have worked on making positive changes to your life.

26You were aged between 46 and 47 during the period of offending and you are now aged 48. You were born in the UK and moved to Australia during your childhood. Whilst your parents divorced when you were 12, you were raised in a loving and supportive environment. You were a good student, and regularly played sport. You remain close to your mother and brother.

27You commenced but did not complete a university degree. You have worked since you were 13, reaching a senior operations role with a fast food chain before moving to a career in IT. You have been employed in the same small business which manages business services for the past 15 years. You have not disclosed your offending to your employer and remain hopeful that you will retain that employment.

28Declining business for your employer led to a 2019 shift to remote work practices. You have an isolated working existence, largely operating from your home, when not at customer locations. Your partner works long hours in aged care and your social isolation significantly increased during covid lockdowns. You began online chatting in 2019 which expanded during the pandemic.

29You have been in a relationship with your partner since 2001. Together you have two teenage children. You have disclosed your offending to your immediate family and to your mother and step father. They have all provided glowing references to the court.

30Your children speak of the shock of learning of your offending, and of your subsequent embarrassment, shame and remorse. They acknowledge the love and care you have always shown your family. Importantly your partner describes how communication between you has improved with your psychological help post this offending. After the initial shock of your offending dissipated, your partner describes that your relationship is stronger and more secure than before.

31Your mother and step father acknowledge your offending and are confident that you will not offend in the future.

32Whilst understanding the nature of you offending, your family continue to stand by you.

33You and your family are passionate AFL supporters. Both your children play for local teams and you and your wife have been active volunteers within your community.

34Since your arrest, you have engaged extensively with Mr Peter Hanley, Psychologist[8]. He described your presentation as “agreeable, emotionally repressed, conflict avoidant”. You do not suffer from any mental impairment or disorder.

[8]Report of Peter Hanley dated 7 June 2024

35You reported to Mr Hanley that your emotional vulnerability and avoidance of conflict led you to reach a point where by the time of your offending you were very lonely and had lost intimacy in your marriage. You were working from home, further isolating you from the community. You found anonymity in the online world and felt like you were playing a game in a make believe world that was within your control. You felt liberated from social inhibitions and were enthralled with the opportunity to explore sexual thoughts and fantasies.

36Mr Hanley describes your progress as consistent but relatively “shallow”. You tend to minimise internal and interpersonal conflicts, which reflects problematic self-awareness and persisting difficulties developing trusting mutual relationships in the real world. Mr Hanley opines[9] that you have not managed to engage in the therapeutic depth necessary to address the sexual issues at the heart of your offending. Despite these reservations, you have diligently attended therapy and made good progress on those components you feel comfortable discussing. You have utilised some of your new found insights in your relationships, and report abstaining from online chatting and pornography use.

[9]At paragraph 24

37Overall Mr Hanley opines that whilst a comprehensive risk assessment would place you within the lower range in comparison to other offenders, your past trivialisation of sexual violence and active engagement in chats that endorse sexual violence directed towards young children is very concerning for a man who otherwise presents as well adjusted. He recommends that you continue both offence specific and group therapy. If you remain within a prosocial community and avoid anti-social online environments he is optimistic about your prospects for rehabilitation.

38You pleaded guilty at an early stage of these proceedings in the Magistrates’ Court. Your plea has significant utilitarian value. You  avoided the use of public resources that would have otherwise been spent in conducting a trial.

39You have expressed remorse and contrition to your psychologist and to your family. I accept that this remorse for your offending is genuine.

40In sentencing you for Charge 1 I have regard to the purposes of sentencing set out at s. 5 of the Sentencing Act 1991 (Victoria).

41As charge 2 is a Commonwealth offence, I also have regard to the factors relevant to sentencing a federal offender.[10] You must be adequately punished, and your sentence must be of a severity appropriate in all the circumstances of the offence.

[10]As set out in Part 1B of the Crimes Act 1914,(Cth) in particular s.16A(2).

42Child sex crimes are recognised as exceptionally serious. Accordingly, if I sentence you to imprisonment but release you on a recognisance release order, there is a presumption that you will serve an actual period of imprisonment, unless there are exceptional circumstances that justify your immediate release.[11]

[11]Subsection 20(1)(b)(ii) Crimes Act 1914 (Cth).

Do exceptional circumstances exist which justify a non-custodial disposition?

43The Crown submit that in view of the objective seriousness of your offending a term of immediate imprisonment should be imposed, but that it is otherwise open to the Court to impose a recognisance release order.

44Your Counsel submits that you should not be required to serve an immediate term of imprisonment as there are exceptional circumstances in your case.

45“Exceptional circumstances” is not defined in the Act. It has been described by various courts as a “circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”[12]

[12]In R v Tootell ex parte AG[2012] QCA 273 at [18] the Court described as helpful the observations of Lord Bingham of Cornhill CJ in R v Kelly(Edward) [1999] 2 All ER 13 at [20] extracted here.

46There is no clear prescription for what circumstances are capable of being regarded as exceptional. Each case will turn on its own facts. I was referred DPP v Breadal[13] where the judge at first instance found that a combination of factors amounted to exceptional circumstances in a case factually similar to that before me. That finding was not disturbed on appeal. In Breadal the combination of the following factors amounted to exceptional circumstances:

(a)   the offender’s withdrawal from continued offending;

(b)   no evidence to suggest the offender was actively looking to engage with a child;

(c)   it was not irrelevant that the communications were with a covert operative and not a real child;

(d)   the offender was a care giver for three children with special needs; and

(e)   the Judge noted that a suspended sentence remains a sentence of imprisonment.

[13][2024] NSWCCA 75

47In your case Ms Beech submits that the following combination of factors are similar to those in Breadal and amount to exceptional circumstances:

(a)   You withdrew from offending;

(b)   There is no evidence to suggest that you were actively looking to engage with a child;

(c)   Your communications were with a covert operative and not a real child;

(d)   You have engaged in extensive treatment, and have made good progress;

(e)   You have pleaded guilty early and are remorseful;

(f)    Your personal circumstances, including lack of prior and subsequent convictions; strong work ethic and role in supporting your family;

(g)   Your cooperation with police;

(h)   Your limited attempts to conceal your identity or to misrepresent yourself, suggest a lack of planning and forethought; and

(i)    The relatively low range of seriousness of your offending.

48Whilst you are to be commended for your efforts taken toward your rehabilitation, such progress is commonly seen in first time offenders, who are otherwise of good character, who have been discovered engaging in offending of this type. Whilst some of the circumstances in Bredal's case are present - some of the personal circumstances present in Bredal's case are not present in yours. Having regard to all of the circumstances submitted to be exceptional in your case, I cannot be satisfied that they are unusual, uncommon or rarely encountered. Accordingly you will be sentenced to serve an immediate term of imprisonment.

49I have regard to current sentencing practices for offences of the type you are charged. The Prosecution has provided a table of cases to illustrate the applicable sentencing principles and to provide some guidance as to potential sentence structure. There are few examples of comparative cases involving child exploitation images produced using AI[14].

[14]One that did is R v Geale [2024] Tasmanian Supreme Court 26 March 2024

50Children are vulnerable to sexual abuse of all types. Online offending is often difficult to detect and can occur on an international level. Given the prevalence and ready availability of child pornography on the internet, general deterrence is the primary sentencing consideration for offending involving child pornography and the online sexual exploitation of children. There is a paramount interest in protecting children by promoting the clear public message that online child exploitation offences and the production of such material are not victimless crimes, and that often children are sexually abused to supply the market.

51In your case therefore Mr Smith, your personal mitigatory factors such as your lack of prior convictions and good prospects of rehabilitation will be accorded less weight than may otherwise be the case[15].

[15]In accordance with DPP (Cth) v Garside [2016] VSCA 74, [63]

52Specific deterrence and denunciation are important considerations. You were initially removed from your home after the allegations came to light, and were only permitted supervised visits with your children. You have since reconciled with your wife and have moved back into the family home. I accept that the impact of these proceedings on your family has had significant deterrent effect upon you, and your engagement with treatment is further evidence of specific deterrence.

53In sentencing you for a Commonwealth child sex offence I must have regard to your rehabilitation when considering whether it is appropriate to include as conditions of any order about rehabilitation or treatment.[16] The purpose for this is to prevent reoffending.

[16]S. 16A(2AAA) Crimes Act 1914

54Mr Hanley found that you are unlikely to have enduring paedophilic or hebephiliac interests and that ongoing treatment will be the best way to protect the community in both the long and short term. I will therefore include  treatment as a condition of your recognisance release order.

55Section 19(5) Crimes Act 1914 (Cth) creates a presumption in favour of the full cumulation of your two offences. However having regard to all the relevant sentencing considerations, and the principle of totality, I consider that a partially concurrent sentence would result in a sentence of appropriate severity. I will therefore order that 3 months of the Commonwealth sentence be served concurrently with the State sentence.

Sentence

56Robin Smith I sentence you as follows:

57On charge 1, produce child abuse material (Vic) you are convicted and sentenced to 4 months imprisonment. You will commence this sentence today. You have no presentence detention to be reckoned;

58On charge 2, using a carriage service to transmit child abuse material (Cth), I convict and sentence you to 12 months imprisonment with effect from 25 August 2024, but order that you be released after having served 5 months of that sentence, without being required to serve the balance of that term, upon giving security by recognizance without sureties in the sum of $5000 on conditions that you will, during the period of 2 years after your release from prison:

(a)   be subject to the supervision of a probation officer for a period of 2 years;

(b)   obey all reasonable directions of the probation officer;

(c)   not travel interstate or overseas without the written permission of the probation officer;

(d)   undertake such treatment or rehabilitation programs that the probation officer reasonably directs;

(e)   attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;

(f)    be of good behaviour;

(g)   You are required to report to Werribee Community Corrections Centre located 87 Synnot Street, Werribee within two clear working days upon your release from custody;

(h)   To report to, and receive visits from, a Community Corrections officer or officers; and

(i)    To notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.

59The sentence of 4 months on charge 1 is the state base sentence and I order that 1 month of the sentence on charge 2 be served cumulatively upon the sentence of 4 months on charge 1.

60Robin Smith, the total term of the imprisonment that you are liable to serve for the sentences being imposed today is 13 months. You are entitled to be released after a total of 6 months in custody, provided you comply with the conditions of the recognizance release order and the suspended sentence.

61Mr Smith the purpose of the recognizance release order is to provide an incentive following your release from prison, for you not to reoffend, and to encourage your rehabilitation. The effect of it is that you have been sentenced on the Commonwealth charge to 12 months in prison, and to 4 months in prison on the State charge. Three months of those two sentences are to be served concurrently or at the same time, so the total effective sentence is 13 months imprisonment, but you will be released after serving 6 months.

62If you fail to be of good behaviour or if you breach any of the conditions of the recognizance relating to the Commonwealth charge you may be called upon to pay the sum of $5000, and a Court may order that you serve all or part of the unserved balance of the sentence, in addition to any other term that you might be required to serve.

63Having regard to section 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty and been found guilty after trial in respect of these charges, I would have sentenced you to a global term of 2 ½ years imprisonment with a non-parole period of  20 months.

64Charge 1 and 2 are class 2 offences under the Sex Offenders Registration Act 2004 (Vic) and are therefore registrable offences. You will be required to comply with reporting obligations under that Act for a period of 15 years.