Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Sutcliffe
[2016] VCC 994
•17 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00287
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) and DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TREVOR SUTCLIFFE |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2016 | |
DATE OF SENTENCE: | 17 June 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) and DPP v Sutcliffe | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 994 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – access child pornography using carriage service – knowingly possess child pornography
Legislation Cited: Crimes Act 1914 (Cth), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:DPP (Cth) and DPP v Garside [2016] VSCA 74, DPP (Cth) and DPP v Watson [2016] VSCA 73, DPP (Cth) v D'Alessandro (2010) 26 VR 477, R v Porte [2015] NSWCCA 174, R v Verdins [2007] VSCA 102, DPP v Tokava [2006] VSCA 156, R v Merrett & Ors [2007] VSCA
Sentence: Convicted and sentenced to a CCO of 4 years, fine of $3,000
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S. Lye | Solicitor for the CDPP |
| of Public Prosecutions | ||
| For the Accused | Ms J. Warren | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1 In this matter Trevor Allan Sutcliffe appeared before the Court on a plea to Indictment CR-16-00287, Ms Warren appeared on behalf of Mr Sutcliffe and Ms Lye on behalf of the Director, both of whom appear today. Mr Trevor Allan Sutcliffe is 35, a cook by occupation.
2 There are two charges on the Indictment, the first is a charge pursuant to s.474.19(1) of the Crimes Act 1914 (Cth) of accessing child pornography using a carriage service. The period of such access was significant, being 2 years and 7 months. The seriousness of this charge is demonstrated by the fact that the maximum penalty prescribed by Parliament is one of 15 years. The second charge to which plea was made was possess child pornography, an offence pursuant to s.70 of the Crimes Act 1958 (Vic), albeit, not as serious, still a serious charge, as reflected by the fact that the State Parliament imposed a maximum penalty of 5 years.
3 Mr Sutcliffe comes before the Court, at the age of 35, without any priors of any sort. The prosecution opening, Exhibit A, was read by Ms Lye, and the circumstances as described in such prosecution opening were accepted by Ms Warren as the facts upon which I am to sentence her client. As I said, Charge 1 involved access to child pornography over a lengthy period of 2 years and 7 months. Over such period a considerable volume of such was downloaded, there was some 100 to 200 images saved according to Mr Sutcliffe in his record of interview.
4 In fact upon investigation by the forensic team, there were some 1,700 unique child pornography files located on the drives confiscated pursuant to the warrant, being 1,615 image files and 85 videos. Albeit, those matters were not fully detailed, it is not suggested that Mr Sutcliffe was necessarily lying in his record of interview when he referred to the numbers. By that I mean, the forensic experts were able to obtain much material by way of background which might have been thought to be deleted.
5 The analysis presented on the ANVIL scale used by the Federal authorities was detailed at paragraph 10 of Exhibit A by the learned prosecutor. The majority of such material is at levels 1 and 2 being respectively 919 items, and 688. There were eight at level 5, and the 85 videos were unclassified.
6 It was agreed by the prosecutor that the material at predominantly level 1 and level 2 concerned images of boys which appeared to be 13 years of age and upwards. There was no aggravation of such material, for example, by being of very young children. They were described at Questions 277 and 259 by Mr Reynolds as essentially selfies in regards to both levels 1 and 2. Such accorded, with his explanations given and indeed, his sexual preference as demonstrated in the psychological reports.
7 It is important to note there was no distribution of such material, or evidence of any selling, again, no evidence of aggravation by those factors. Given such assessment by the prosecutor and the classification provided I indicated initially, and indeed, the plea ended on that basis, that I did not need to personally look at the material despite invitation from the prosecutor that I do so.
8 I said that I had recently on a number of occasions viewed such material, and as I think I remarked in DPP (Cth) and DPP v Garside [2016] VSCA 74 it is not the most pleasurable experience of a Judge’s life. I was quite content at that stage not to be involved in it again. However, as I said, I changed my mind in that regard.
9 Much of the plea and indeed, the propositions put by the learned prosecutor, who at all times submitted to the Court that the appropriate sentence in this matter was one of immediate imprisonment, concerned the principles recently referred to by the Court of Appeal in Garside.
10 The immediate difference in regard to Garside was the volume of material. In Garside there were some 6,000 items, albeit, that predominately the material was at level 1, there was considerable, to use the word “revolting” is not an understatement, material at the other levels. Equally Mr Garside had downloaded such material over a period of years similar to the prisoner here, albeit, the actual period charged in Garside was only 8 months.
11 It is clear having seen the material in both cases that the child pornography in Garside was at a much graver level. Perhaps by way of explanation – and these are always difficult, because I suppose in the eye of beholder – and it also has to be remarked that we are dealing and talking about child pornography material as defined by the respective Acts. The level 1 material in this matter is essentially selfies, but essentially they are photographs of young boys, as I said, predominantly the age of 13. They show naked young boys and they show their penises. Now on its face there is nothing pornographic about those photographs, of course they are defined to be pornographic because of their age, to protect such children from inappropriate exploitation.
12 If you compare Garside, the material was substantially different. The material, even at level 1, in Garside was a gynaecological concentration on the vaginas of young women, in many instances quite inappropriately displayed, and the persons involved were significantly younger. Such is the clearest example of the differences in material.
13 I want to come to some of the Garside propositions before I talk about the actual facts of this matter. Indeed, I suppose in a way I am simply quoting a number of the matters that were put to me by the learned prosecutor, which propositions I accept totally.
14 The first was the principle set out in Garside at [19], [62] and [73], where the Court said:
"Child pornography offences are considered especially grave by both the Courts and the legislature.”
15 There is reference there to DPP (Cth) andDPP v Watson [2016] VSCA 73, the necessary consequence of such is that the paramount consideration as to sentencing for this offence must be general deterrence and denunciation. Those principles were set out in the cases to which the learned prosecutor referred, and in particular at [21] where there is the reference to DPP (Cth) v D'Alessandro (2010) 26 VR 477, and the comments of the Court of Appeal who said:
"…prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.”
16 Equally, the question of good character must be considered in the totality of the considerations necessary in such a sentence. My own view insofar as the discussion as to the manner in which good character is taken into account is best summarised by Priest JA at [90]-[94]. If I might quote from his comments at [94]:
"Hence in my view, the Judge was entitled to give the weight that he did to the fact that the respondent has attained (in that case) the age of 56 years with a clean background. So long as a sentencing Judge always bears steadily in mind that general deterrence must be seen as the prominent factor in the exercise of the sentencing discretion for child pornography offences, a Judge is entitled to give such weight to good character as is appropriate in all the circumstances of a particular case.”
17 Those words of His Honour are totally consistent with the manner in which I have been sentencing for the last 20 years. Such is also totally consistent with ss.5(2)(da) and (f) of the Sentencing Act 1991 (Vic), and ss.16A(2)(d), (m) and (n) of the Crimes Act 1914 (Cth). One is entitled, as His Honour said, to give such weight to good character as is appropriate in the circumstances of this case, and I intend to do so. The good character of Mr Sutcliffe is a factor to take into account, provided one does not forget the prominent factor of general deterrence in this sentencing exercise, and I do so in this case given that Mr Sutcliffe is aged 39 without any priors whatsoever.
18 One is required of course in each case to assess the degree and type of depravity. One also, as was pointed out in this case, has to consider, given the alternative proffered by Ms Warren, how such would serve the principle of general deterrence. As the Court said in Garside, it is very important not to give undue weight to a plea of guilty.
19 The learned prosecutor also referred to R v Porte [2015] NSWCCA 174 [99]-[100], as to the need where you have a Commonwealth/State combined Indictment for appropriate cumulation.
20 Also the point was made in Garside is that, and which must not ever be misunderstood, that albeit in this case there is a preponderance of level 1 and 2 material, such is still capable of possessing significant gravity. Such principle is also referred to at [77] of Porte, as relied upon by the learned prosecutor. One does not lose sight of the principles set out by the majority in Garside at [73], where they said:
"The failure to impose an immediate and substantial period was not in conformity with prevailing sentencing practice. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations. When regard is had to the nature and circumstances of the offending, a CCO is not in our opinion, a disposition that was reasonably open.”
21 As has been referred to in Garside, not only did the trial Judge make a close assessment of the pornography, but so did the Court of Appeal.
22 That brings me really to the reason why I sought to view the sample material. In considering this case and the comments of the Court of Appeal in Garside, clearly in any particular case one must look at the nature and circumstances of the offending in order to determine upon an appropriate sentence.
23 I therefore, as I said, took up the invitation of the learned prosecutor and asked to peruse the sample material, which is now Exhibit D. Clearly, albeit, they are not all selfies in level 1 they do, as the learned prosecutor summarised, essentially involve young children who appear to be somewhere around the age of 13. That is not to say they are all of that age, but clearly they are the majority.
24 In regard to the sexual activity in level 2. The sexual activity is predominantly involved in the touching of individual penises. One assumes there is masturbation going on, but essentially that is the material. The only significant alteration to that is one photo in the sample where a child has a dildo placed close to his anus.
25 In regard to level 5 of which there was only eight images, referred to as bestiality/humiliation, the material there essentially involves young children at the approximate age of 13, some perhaps even younger – essentially urinating on each other. There is one series of photograph, and I was unable to ascertain precisely what it is, but the description spoke about peanut butter, and I assume there is a cat involved and the cat must be eating peanut butter at the end of the boy’s penis, I assume. I could not actually tell clearly from the revised photos, but that is what it appears to be, but that is the only one of those matters involving an animal that I can perceive. All the rest of the material at level 5 essentially is the urinating on a child, by another.
26 My own analysis, as I have earlier said, is that without in any way undermining the comments in Porte, and accepting that at all these levels such images possess significant gravity, the material here, was significantly, insofar as looking at the nature and circumstances of the offence, I find from my own observation of both samples that the material involved in Garside was far more revolting and extreme than the material here. That is not in any way to disregard that this is child pornography. However, there was I find not only a discernible difference, but a difference that is of significance in regard to an appropriate sentence. That is in looking at the particular nature and circumstances of the offending in this matter, as referred to by the Court of Appeal in Garside at [73], I find there was a significant difference between the pornography material here and in Garside. That is the reason why I decided to look at the sample material.
27 Insofar as the plea was concerned of Ms Warren, she took me to the excellent work record that her client had both by way of experience in horticulture and gardening, and in regard to cooking, generally in the food industry. She also referred me to – and I will simply go to these once, even though they are subsequently referred to by the learned prosecutor in submission, Exhibit 2, the report of Ms Ashton, the psychologist. She is in fact the treating psychologist and has now to date, unless it has increased, treated Mr Sutcliffe on 14 occasions, as was put by Ms Warren, is that still the same?
28 MS WARREN: Sixteen.
29 HIS HONOUR: Sixteen now as of today. Those sessions were recommended by the original treating practitioner, because of Ms Ashton’s particular skills, who noted Mr Sutcliffe’s traumatic experiences in the sense of the sexual assault that took place upon him. As to her opinion and diagnosis she said:
“(He) had reported repeated experience of abuse and sexual abuse during his childhood. This appeared to have influenced a pattern of dysfunctional patterns within relationships, prior substance use and the use of sex for emotional coping and to create a sense of intimacy...Mr Sutcliffe appears to engage in sexual behaviour while on line as this allows a level of emotional protection, and distance.
Mr Sutcliffe was and did meet the criteria for borderline personality disorder.”
30 It was her opinion that such disorder was marked by frantic efforts to avoid real, or imagined abandonment, a pattern of unstable and tense interpersonal relationships characterised by alternating between extremes of idealisation and deviation, identity disturbance, markedly and persistently unstable self-image, or sense of self impulsivity in areas that are potentially self-damaging…recurrent suicidal behaviour… due to marked reactivity to mood. Ms Ashton concluded:
"It is likely that Mr Sutcliffe would have been experiencing these symptoms at the time of the offending".
31 As to recommendations she said that Mr Sutcliffe:
"Was to continue to receive treatment for borderline personality disorder as well as offence related treatment. Given the nature of his symptomology long term treatment is responsive and appropriate.”
32 It was Ms Ashton’s opinion that Mr Sutcliffe would respond well to a stable therapeutic relationship and therefore benefit from maintaining treatment with her. We note today that Mr Sutcliffe has now completed 16 such consultations. While he is undergoing such treatment, Ms Ashton also recommends that Mr Sutcliffe would benefit from engaging in the program run by the SOATS Team.
33 The further report of the clinical psychological, Ms Cidoni, Exhibit 3, essentially the diagnosis was the same. Ms Cidoni noted, as was referred to by the learned prosecutor, in that interview being 16 May of this year, a level of denial as to the offending, as set out on p.1 of her report. There was reference by way of background to the problems in his life by way of drugs, and issues as to the impact of alcohol. She noted the prescription of antidepressants which he remains on. Also noted was the fact that to the time of this offending he has never seen a psychiatrist, or psychologist and the fact that he had pursued the counselling after these matters.
34 The confirmation was made as to the borderline personality disorder, and what is important is that an IQ was noted of a level of 93. It seems to me that such is important in considering the potential positive impact of ongoing counselling. During such psychological testing, it was noted that he was somewhat guarded, and thought he was getting a raw deal in life. It was noted that with that his psychological profile there are likely longstanding personality problems that predispose him to develop physical symptoms under stress. There is excessive preoccupation with health and bodily concerns. He lacks insight into the origin and consequences of his behaviour. He may well be, given the matters that have been referred to in his background, sexually maladjusted.
35 Insofar as treatment was concerned at p.9 Ms Cidoni said:
"His profile yielded evidence for major mental illness and support a borderline personality disorder…characteristics include a pervasive fear of abandonment. These conditions affect behaviour with serious shifts in mood and energy, as well as intense emotions that can result in harmful or impulsive behaviours. This personality disorder usually originates from harmful childhood experiences including abuse, neglect and bullying. Acute distress related to his circumstances is evident, but there appeared to be no present suicidal risk.”
36 Such opinion is important in considering this matter, and confirm the personal histories given.
37 Ms Cidoni says further at p.9:
“Substance abuse is commonly occurring among individuals with borderline personality disorder…therefore increased impulse activity and disinhibition…Various forms of impulsivity are associated with BPD which include sexual impulsivity…fortunately he has ceased all drinking and drug taking behaviour that will allow him to make progress in therapy.”
38 At p.10 of the opinion Ms Cidoni noted, as did the learned prosecutor, that Mr Sutcliffe exhibits denial in regard to the offending. However Mr Sutcliffe understands the offending behaviour is profoundly wrong. It was noted by the prosecutor that it was said that he lacks insight, but what is important is the opinion as to the reason for that.
“He lacks insight by nature of his mental health problems where ongoing treatment is essential. A psychiatric referral is also encouraged.”
39 There was noted a moderate risk of recidivism. A conclusion which is important in this case that his mental health is extremely poor and as a result he would experience hardship in a prison environment, whereby suicidal risk may increase.
40 Again, if I may make a comparison to Garside, we are dealing here, at first instance, with a person of a far less stable psychological structure than Mr Garside. There was no such issue with Mr Garside till after he was sentenced.
41 In addition Ms Warren relied upon the personal references, which I will not refer to, as set out in Exhibit 4. She submitted to the Court that her client fully understood the grave risk of gaol, and the importance of general deterrence in this matter, and referred back to his first sexual experience by way of exposure to a young boy at the age of 13, and the subsequent sexual assaults upon him at the age of 15 by a 20 year old person.
42 Those matters seem to be at the core of the concerns expressed by the psychologist and again are consistent with the history of the abuse of drugs and cannabis, from a very young age. Such background and his own sexual preference seems to indicate why the pornography in this case related to young males. Ms Warren stressed his own steps taken to attend upon a psychologist for the first time by way of rehabilitation, and that he was getting ongoing treatment for his depression, and she relied on the good character reference.
43 Ms Warren spoke in particular in her submission of the mitigating factors which she detailed at paragraph 14, not in any way undermining the importance of general deterrence in a matter such as this. She noted the current mental health plan that had been put in place, and did the analysis that I have already referred to as to the pornography itself.
44 I must say in analysing those questions she noted at Question 274 being the record of interview the age of the persons was indeed – as it clear from my observation – some 13 to 14. It is noted that he refers at Answer 277 to it being a matter of curiosity. It seems to me again that is a denial of the reality, clearly such relates to his sexual preference, and I have referred to the analysis of the images themselves.
45 Ms Warren acknowledged one of the problems for her client was the extent of the offending. She submitted that I should conclude as a result of the Cidoni report that there was good prospects of rehabilitation in this matter. While it was not put as R v Verdins [2007] VSCA 102 argument, that is principles 1 to 3 thereof, Ms Warren asked me to take into account her client’s background psychological material as explaining this criminality, and in regard to Verdins principles 5 and 6, the impact that prison would wrought upon her client, and she said her instructions were that Mr Sutcliffe was terrified in this regard.
46 Ms Warren essentially submitted, in summarising all of those matters, that while immediate imprisonment must be a consideration for the Court, because of such particular matters the Court should consider a community correction order. She referred in particular to the relevant provisions of both the Commonwealth and State Acts.
47 Exhibit B was the sentencing submission of the learned prosecutor, and I think I have paraphrased much of that already. In particular, as I said, Ms Lye relied upon Porte and the references therein to the culpability of level 1 and 2 matters, that should never be forgotten, the significant number of children involved, the lengthy course of conduct. Of course in these matters it can never be said that there is any victimless crimes, each of these children clearly are victims.
48 As I have said, Ms Lye relied on what she submitted as a lack of insight. It seems to me that is not an appropriate way to put it. This is a person in my view, as is set out by the experts, a person who has significant prior psychological issues who for the first time is getting treated, and who may still as a result of such condition lack the necessary insight which one would hope that by the end of the treatment, that he will obtain. She relied and stressed the principles of Garside that I have already submitted, and D'Alessandro and submitted that in this case I should pass an immediate term of imprisonment. Ms Lye questioned what were the prospects of rehabilitation in this matter.
49 In a sentence such as this, given the intent of Parliament and the Courts, one does not lose sight of the seriousness of these crimes, and that the principle of general deterrence is paramount. Nor do I lose sight of the particular aspects as to current sentencing practice detailed by the Court of Appeal in Garside.
50 Insofar as the CCO report sought by Ms Warren, I did, while making it clear that the seeking of such a report did not indicate any final view by me, call for such a report from the Community Correction Services. Such report was provided by Ms Leigh Dunning – and I thank her for that. The report, dated 1 June of this year, deemed him to be suitable, and suggested various conditions and offending behaviour programs.
51 Significantly in regard to the mental health assessment it was noted that Mr Sutcliffe reported he was willing and able to continue to address his mental health. He indicated during assessment he would benefit from the supports of the current psychologist, Ms Ashton. It seems to me that that is a very sensible view.
52 Taking into account the provisions of the Commonwealth and State Acts, one has to then assess the various submissions. As I said, the prosecution submitted given the material, there should be a period imposed of immediate imprisonment. The defence put the proposition that a CCO would be an appropriate order.
53 Having taken into account and analysed the particular nature of the criminality and circumstances of the offending, having analysed the psychological and psychiatric make-up, and the advice that psychiatric help is need, taking into account his character in the manner I have indicated, and the fact that are no prior offences, the fact that there is a clear plan for treatment for the first time in his life, the need for ongoing treatment, and the fact that since this offending, certainly on the last 16 occasions Mr Sutcliffe has complied with that plan, such indicates to me that he is a person who could effect rehabilitation.
54 I am satisfied after close consideration that the purposes involved in regard to sentencing for the crimes, including the predominant purpose of general deterrence, can be effected here without imposing an immediate period of imprisonment. Insofar as both charges are concerned I intend to impose a CCO.
55 Before I do that I would want your assurance Ms Warren that your client understands those, what it means. The period involved would be four years and I also intend to impose a fine in regard to Charge 2 in the sum of $3,000. All the conditions recommended by the report would be imposed, and I would hope that the recommendation extends to psychiatric assistance as well.
56 I should say that taking account of the principles detailed in DPP v Tokava [2006] VSCA 156, as referred to by the current President of the Court of Appeal at [21]-[24], I am always in sentencing concerned as to the impact of gaol upon people. Mr Sutcliffe could not be seen as a young offender. However, given his make-up he is an offender with very considerable deficiencies. It seems to me the principles of Tokava as detailed by the learned President are very important consideration in the synthesis.
57 I also refer to the President’s further comments in R v Merrett & Ors [2007] VSCA 1 [49], insofar as the benefit of rehabilitation to the community at large, even in cases where one is dealing with serious offences as we are here. They are the reasons why I have come to such conclusion as to the sentence in this instance.
58 Ms Warren, do you need to seek if your client fully understands the terms?
59 MS WARREN: He does Your Honour, we have discussed that.
60 HIS HONOUR: Yes. What I intend to do is impose a community correction order for a period of 4 years in regard to Charge 1, the Commonwealth charge. Equally a community correction order for a period of 4 years in regard to the second charge, and they will run concurrently. In the second charge I will impose a fine of $3,000 and I will order that that be paid over a period of 12 months.
61 Ms Warren, you should advise your client that should there be a desire by him to extend that period he should have demonstrated in that 12 month period a significant amount of payment which would justify the application.
62 MS WARREN: Yes, Your Honour.
63 HIS HONOUR: To the extent that I am able to comply with the requirement of Parliament as I have imposed a fine, which brings s.6AAA of the Sentencing Act1991 (Vic) into being, the best I can say, which is obvious, that had I not imposed a community correction order and fine in this matter I would have imposed immediate imprisonment. However, I do not take the matter any further than that.
64 MS WARREN: Yes, Your Honour.
65 HIS HONOUR: Is there any matters that I have not clarified?
66 MS LYE: Your Honour referred to images in Categories 3 and 4. This is definitely before the prosecution, but if Your Honour notes in the representative sample the headings are crossed out, so we are not alleging any images from Categories 3 and 4. It is only from one and two. It is just because those images are given to me late - - -
67 HIS HONOUR: Is that why they are crossed out - - -
68 MS LYE: That is why I could not get the informant actually - - -
69 HIS HONOUR: I apologise. Well that is probably why I could not understand it.
70 MS LYE: Yes, Your Honour. I looked at it as well and I crossed out the headings, they are just purely to one and two.
71 HIS HONOUR: Right. So it is all one and two - - -
72 MS LYE: Yes, Your Honour.
73 HIS HONOUR: That is why I said I could not find an adult - - -
74 MS LYE: Yes - - -
75 HIS HONOUR: It is all right, I understand that. All right. Well, can I just say that that having been appropriately pointed out to me I do thank the prosecutor for that, and can I say that that perhaps even more significantly draws a difference between Garside, because the material over levels one and two in Garside. I think I used the word “horrific” in that judgment, they really were abominable and that material is certainly not present in this case, and I think such is a significant difference, as I have found.
76 Thank you Madam Prosecutor for that. That overcomes that quandary, I was wondering about that. Now, are you happy if I hand the sample back and you, or the officer will keep that. So we just have Mr Sutcliffe sign that document.
77 I thank both counsel for their assistance in what was obviously not an easy sentencing task.
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