Director of Public Prosecutions (Cth) v Anderson
[2021] VCC 2014
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00891
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN ALEXIS ANDERSON |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2021 | |
DATE OF SENTENCE: | 13 December 2021 | |
CASE MAY BE CITED AS: | DPP (Cth) v Anderson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2014 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – Child abuse materials – Whether exceptional circumstances can be proven – Remorseful offender – Imprisonment burdensome because of COVID-19 pandemic
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act2004 (Vic); Sentencing Act1991 (Vic)
Cases Cited:Markovic v The Queen (2010) 30 VR 589; DPP (Cth) v Garside (2016) 50 VR 800; DPP v Smith [2010] VSCA 215; Worboyes v The Queen [2021] VSCA 169; R v Pedersen [2021] NSWDC 535; Cluett v The Queen [2019] WASCA 111; R v Allison (a pseudonym) [2021] VSCA 308
Sentence: 2 years and 6 months imprisonment with a release after 5 months on a Recognisance Release Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Saunders (for plea) Ms E McDonald (for sentence) | Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Accused | Mr T Isaacs | Anthony Isaacs |
HIS HONOUR:
1Justin Alexis Anderson, you have pleaded guilty to two charges. They are:
(1) Using a carriage service to access child abuse material contrary to sub-s 474.221 of the Criminal Code Act 1995 (Cth); and
(2) Possess or control child abuse material obtained or accessed using a carriage service contrary to sub-s 474.22A(1) of the Code[1].
[1] Criminal Code Act 1995 (Cth)
2The maximum penalty for both offences is 15 years' imprisonment.
3For reasons I am about to articulate, I have concluded that there is no option but to sentence you to a term of imprisonment to be served immediately. I will come to the duration of that term in due course, as well as the circumstances and conditions of your eventual release.
Circumstances of the offending
4You were born on 17 May 1987 and were between the ages of 31 and 33 at the time of the offending.
5Between about June 2019 and 17 December 2020, you used the internet to obtain a total of 475 files consisting of child abuse material and specifically 366 of those files had been accessed between 1 December 2019 and 17 December 2020.
Offending
6The materials located as part of the investigation are categorised using the Interpol Baseline Scale. This classification system provides two tiers of child abuse material:
(a) Category 1 material consists of an image depicting a real prepubescent child (under 13 years of age approximately) involved in a sex act or witnessing a sex act, or that is focused or concentrated on the anal or genital region of the child.
(b) Category 2 includes material that is not in category 1 but that depicts or describes a child as a victim of physical or sexual abuse, in a sexual pose or activity in the presence of another in such a pose, exposing their genital or anal region, exposing the breasts of a female child or that a reasonable person would regard in the circumstances as offensive.
7In category 1 investigators found 252 images (145 unique) and 17 (13 unique) videos. In category 2 they found 82 (49 unique) images and 124 (77 unique) videos.
8The category 1 materials can be summarised as video file footage of female children between the ages of seven and 10 years, naked during the video and being vaginally and orally penetrated by adult male penises.
9The category 2 materials can broadly be described as children between the ages of 13 and 18 years of age performing sex acts on themselves, each other or being vaginal penetrated by adult males.
Charges 1 and 2
10On Thursday 17 December 2020 investigators from the Joint Anti Child Exploitation Team detected IP addresses linked to you at your home address sharing known child abuse material on the peer-to-peer network Gnutella. Investigators conducted checks to confirm your house and phone details. This confirmed your residential address at Phoenix Grove, Fraser Rise. On Friday, 18 December the investigators executed a Commonwealth search warrant at this address. They seized a number of electronic devices including mobile phones, computers and external storage devices. That material was then analysed and during this analysis several files containing the child abuse material set out above were located in the recycle bin area of the computer tower. Further analysis revealed the material set out above.
Arrest and subsequent interview
11Following the initial discovery of the child abuse materials you were arrested and interviewed at your home. When initially asked if there was anything relating to child abuse material that may be on the premises you replied to officers on the scene ”Well no. No ... Not that I can think of anyway.” Later the interview was recommenced and investigators informed you that the child abuse materials on the computer had been located. You then gave a false explanation to officers about having noticed child abuse materials on the computer which inadvertently appeared on multiple occasions when you downloaded computer game files or TV episodes from an authorised website using peer-to-peer file sharing software. You suggested to investigators that the computer was doing things that were not under your control and that you had complained to your service provider and attempted to stop what you thought was a virus downloading the material or that someone remotely had gained access to the computer. You said that you had tried to delete any child abuse material that was inadvertently present on the computer. You explained to investigators that you knew it was serious because you were employed as a Border Force Officer and had been trained to assess passengers arriving into Australia to examine their mobile devices for such objectionable material. You said that you were shocked when you found such material and you absolutely denied any intentional access to such material. A short time later you indicated to investigators that you wished to say more. You then said:[2]
“There was an instance where that curiosity got the better of me. When I was looking through, through I guess using the uTorrent to download items and to see what else was – that could be – that could be found. I still want to say though at no instance did I ever reach out to anyone. There was a particular file that was downloaded that was – I can't – I can't remember the name of it but it was like, it was like, it was like, like a collection or compilation, sorry. When I obtained that and had opened it, it was a large amount of said exploitation material which I then deleted as well.”
[2] Exhibit P1 – Prosecution Opening for Plea page 4, at paragraph [16]
12You said that you did this out of curiosity and were gobsmacked how easy it was to find the materials. You said you had only done it on two occasions. You said you had never tried to download that kind of material and would not knowingly do so. You said that it was absolutely disgusting to you. That people did not realise the gravity or impact that it has and that you had stopped being a “4A” officer because you did not want to see that material any more.
13You were released on bail. You then contacted your solicitor and two days later your solicitor indicated to investigators that you wished to make full admissions. You did. No further interview was recorded.
Further offending
14Investigation of the electronic devices revealed that on 14 June 2019 you had accessed 90 files constituting child abuse material. You have made full admissions in this regard. I record that upon admitting your guilt in respect of this further offence, and your counsel indicating that you wished for the Court to take this further offence into account in passing sentence on you in respect of Charge 1, using a carriage service to access child abuse material, I take this further offence into account when imposing a sentence in respect of Charge 1. I record that it does not increase the maximum penalty but it is taken into account and is certified by me in the signed form pursuant to s 16BA of the Crimes Act 1914 (Cth).
Pleas of guilty, remorse and cooperation
15Following on from your cooperation with investigators, I record and the Crown admits, that you have pleaded guilty at the earliest possible time. I record that this guilty plea is of significant utilitarian benefit heightened by the current suspension of jury trials which are only now beginning to resume but nevertheless have created a substantial backlog over the period those trials have been suspended.
16I accept your pleas of guilty are indicative of your remorse for your conduct and your willingness to facilitate the course of justice which is also demonstrated by your full cooperation with the police. I do note your initial answers when questioned at your home on the day of your arrest, however, this is outweighed by your subsequent full admissions made within a very short period afterwards. Your cooperation and also the history taken by Ms Pamela Matthews, psychologist, in her report dated 20 October 2021 which was tendered on the plea on your behalf, that speaks consistently of your shame at your actions and self-loathing for what you have done. I consider that you have accepted responsibility for your actions.
Personal history
17You were born on 17 May 1987. You grew up with your mother and stepfather. Your biological father was unknown to you until more recent times. You experienced some sexual abuse during your early years when you were inappropriately touched by a family relative. The impact of this childhood abuse was not made known until these events themselves unfolded and you disclosed them to your mother and your wife.
18You completed Year 12 and then began a course in legal studies at Victoria University in about 2005. You did not complete this having obtained work at Cash Converters Sunshine in a retail position. You put your university studies aside to work. You obtained a private security licence and began work full time. This is a hallmark of your background in that you have remained steadily in employment on a full time basis. You met your wife, Peri Nightingale, in around 2007 and were married in late 2008. Ms Nightingale moved from New South Wales to be with you and make a life in Victoria. You have one son born in 2012. Perhaps the birth of your son and your more settled life prompted you to apply for more secure employment with the Australian Border Force in 2012. You were successful in this career and progressed well in it. In about 2018 you were promoted to become something of a team leader and moved into the city to work. This provoked some levels of stress at work and it was about the time that your offending began. Your counsel submitted that in about 2019 you attended your treating doctor and were given 10 psychological counselling session under a mental health care plan. Ostensibly this was for workplace stresses causing depression and anxiety.
19You continued with these mental health care appointments through 2019 and into 2020. It is to be noted, however, that during this time things at home were difficult with the COVID-19 pandemic forcing you to adapt to changed circumstances at home and assist your young son with his home schooling. However, it is notable that you began to turn to accessing child abuse material during this time.
20In mid-2020 your general practitioner put you onto the antidepressant Sertraline 100 milligrams per day.
Psychological profile and risk of reoffending
21After your arrest you were examined by Ms Matthews. She noted the correlation between your workplace stressors and your offending. She recorded that the offending became a way for you to manage your feelings of stress. It is somewhat concerning, I consider, that despite the fact that you were under the care of your general practitioner and on a mental healthcare plan that was not of assistance in providing you with other coping strategies and to turn you away from the abhorrence of child abuse material. I consider it telling that Ms Matthews considers that you were not internalising cognitive means of self-management and this was the psychological skill you need the most in order to avoid child exploitation material. Though she has seen you on only one occasion she considered that you were an average risk or a medium risk of reoffending.
22You have not been under the care of any psychologist or your general practitioner or been enrolled in any sexual offenders rehabilitation program since your arrest due to financial constraints it was submitted.
Prospect of rehabilitation
23While on bail you have been forced to resign your position with Australian Border Force and you have attempted to find work to support your family. You have not been able to live with your family due to the involvement of the Department of Human Services and your bail conditions which have limited your access to your son. You have, however, gone out and found other work. You are now working full time and once again this stands to your credit. You have only one unrelated prior matter from a long time ago and it is not relevant in my estimation.
24Overall I do regard your prospects of rehabilitation as reasonably positive having regard to the following matters. You have no prior convictions. You have accepted responsibility and demonstrated remorse. You have previously engaged with your general practitioner and mental health practitioners and recognise the need for such treatment. You have an impressive work history. You are obviously intelligent and you do not suffer from any substance abuse or have any cognitive difficulties which would impede your rehabilitation. It is also highly significant that you come from a loving and supportive family. The reference letters written by your brother, mother and particularly your wife speak of this strong social network. In addition, you have reconnected with your church and your pastor has written a reference highly supportive of your ongoing commitment and embraced by that community. These are all very prosocial factors.
The impact of imprisonment
25Your lack of prior contact with the prison system and the fact that you will be separated from your wife and son for the first time does, in my view, mean that a term of imprisonment is likely to weigh heavily on you.
26You are the sole income earner in your family and the impact of the loss of your employment and its effect on your employability after you are released are matters that will weigh heavily on you. I note the factors of third party hardship enough to come into play in my sentence of you.[3]
[3] Markovic v The Queen (2010) 30 VR 589
COVID-19
27The outbreak of COVID-19 will impact the burden of your period of imprisonment in the following ways.
(a) Concern for your own health should the virus spread within the prison system;
(b) Concern for the health of your family and loved ones in the community including your elderly mother;
(c) The likely absence of face to face visits which are frequently suspended during the pandemic;
(d) Reduced access to programs, education, exercise and employment; and
(e) The situation where lockdowns have been prevalent during the course of the pandemic, though there is currently some cause of optimism given the state of vaccination rates in Victoria.
28You will be required to quarantine upon entry into the system and lack of face to face visits will be onerous and increase the burden of your imprisonment should this occur again if there is a further outbreak. I have had regard to these matters in formulating the sentence on you in this case.
General sentencing principles
29The offences you have committed are serious as reflected by the maximum penalties for each charge.
30The principles in sentencing for offences of child abuse material are well established.
31In cases involving the accessing and possessing of child abuse material the children depicted in images are, of course, victims of your offending. This is not a victimless crime. In accessing and possessing these images you supported the market at the heart of which is the abuse and exploitation of young children. The protection of these children is a very important sentencing consideration.
32In the case of DPP v Garside[4] sentencing guidance was provided by the Court of Appeal. At paragraph [62] of the joint reasons of their Honours Redlich and Beach JJA they said this:
“What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice. That a term of immediate imprisonment will ordinarily be expected for such offending. This proposition must be considered in the circumstances of the individual case that is being dealt with.”
[4] DPP (Cth) v Garside (2016) 50 VR 800
33Speaking generally, in sentencing for child abuse material offences, Nettle JA, as he was then, in DPP v Smith [2010] VSCA 215 said this:[5]
“General deterrence is regarded as the paramount sentencing consideration. Because of the public interest in stifling the provision and use of child pornography and less or limited weight is given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.”
[5] DPP v Smith [2010] VSCA 215 at [23]
34The difficulty of detection given the anonymity provided by the internet is another relevant consideration supporting the primary role of general deterrence, as does the prevalence of such offending with child abuse material increasingly accessible by the internet.
35The following factors are relevant to the assessment of the nature and circumstances of the offending:
(i)The nature and content of the material, in particular, the age of the children and the gravity of the sexual activity depicted. (I note that Ms Matthews has classified the material into Categories 2, 4 and 5 of the ANVIL system. Both parties accepted that this was analogous to Categories 1 and 2 of the Interpol scale.);
(ii)The number of items of images possessed;
(iii)Whether the material was for the purposes of sale or distribution – there was no such assertion made in this case;
(iv)Whether the offender will profit from the offence – there was no such assertion made in this case;
(v)In the case of possession or access of child abuse material for personal use the number of children depicted and thereby victimised; and
(vi)The length of time for which the pornographic material was possessed.
36It was submitted by your counsel that your offending falls towards the lower end of the spectrum when regard is had to the following matters.
(a) That there were a relatively small number of images accessed sporadically;
(b) That the material was purely for your own purposes and not for sale or distribution and that you did not stand to make any financial gain.
(c) When downloaded there were many images on one file, for example, such that there was not a constant downloading of material.
37I accept those matters. However, regard must be had and focus must not be lost on the fact that the material which was procured fell into Categories 1 and 2 of the Interpol scale. Examples of that are set out above. This is serious disturbing imagery. I also note that while the material was not mainly obtained for constant sexual gratification at times it was used for this purpose.
Plea of guilty
38This matter resolved to a plea of guilty early in the proceedings. You will receive the full benefit of that plea of guilty both in utilitarian terms and as evidence of remorse. I will articulate what that benefit is in due course.
39Further, I repeat that the utilitarian value of the pleas have greater significance in the context of the present COVID pandemic for the reasons recently advanced in the Court of Appeal in the sentence of Worboyes v The Queen.[6] The discount that accompanies your plea then in this matter will be significant and perceptible.
[6] [2021] VSCA 169
Submissions
40It was submitted on your behalf by your counsel that specific deterrence ought not overwhelm other considerations, having regard to your lack of prior history and your willingness to engage with your family, community and treatment programs. It was submitted that the only reason you had not been able to access such programs is finance. Your counsel acknowledged the relevance of denunciation, deterrence both specific and general and just punishment. Your counsel submitted that your offending is not a case where community protection looms large and necessitates the imposition of a more serious sentence. Your counsel also submitted that your offending occurred in the context of workplace stresses and the COVID-19 pandemic. Your counsel further submitted that you therefore came to rely on child abuse materials on the internet as a way of escaping these stressors. It was submitted that whilst this does not excuse your offending it assists to understand why a man such as yourself with no prior convictions comes before the Court essentially for the first time at the age of 34. Your counsel submitted that I should impose a term of imprisonment but release you on a recognisance order immediately. In particular your counsel referred me to the case of R v Pedersen [2021] NSWDC 535.
Analysis
41Both parties provided the Court with assistance from other Courts as to how competing factors ought to be synthesised in arriving at an appropriate sentence. I acknowledge the utility of comparative cases but attention must be squarely fixed on the facts of this case rather than using other cases to simply formulate a range for certain offending.
42The starting point are the provisions of s20(1)(b)(iii) of the Crimes Act1914 (Cth) which stipulates that a person convicted of a Commonwealth child sex offence be jailed immediately unless the Court is satisfied that exceptional circumstances exist. The term 'exceptional circumstances' is not defined. There is limited utility in transposing judicial comments on that term from different statutes to this instance.
43Here the accused's counsel suggests numerous factors all operate to produce exceptional circumstances. These factors are said to be your past history of being sexually abused and the psychological illness you suffered during 2019 during the period of offending.
44Though the term 'exceptional circumstances' is not defined in the Act[7] and counsel could not direct me to any direct authority on the point, it seems to me that when regard is had to decisions such as Cluett v The Queen,[8] the factors necessary to support a finding of exceptional circumstances do not exist in this case.
[7] Crimes Act1914 (Cth)
[8] [2019] WASCA 111
45For these reasons I find that the terms of the Act[9] require me to impose a term of immediate imprisonment upon you as exceptional circumstances do not exist.
[9] Crimes Act1914 (Cth)
Totality, concurrency and cumulation
46There is a need for some cumulation between the offences in this case. This is because the offending across the two offences covers similar but separate conduct.[10] However, I must apply the totality principle to the offending to ensure your overall sentence remains just and appropriate. The sentence I will impose will allow for a lengthy period of supervision where you will be required to participate in a sex offenders rehabilitation program. The period of supervision recognises your previous good character and what I regard as your positive prospects for rehabilitation with support. It is in my view that for the interests of the community that you are obliged to participate in a sex offenders rehabilitation treatment program for an extended period as part of the sentence to promote your rehabilitation. I am mindful that your previous engagement with counselling was not sufficient to turn you away from this offending.
[10] R v Allison (a pseudonym) [2021] VSCA 308
Sentence
47Mr Anderson, will you please stand?
48In relation to Charge 1, sir, I sentence you to a period of imprisonment of two years. That sentence is to commence today. In relation to Charge 2 I sentence you to a period of imprisonment of 12 months. That sentence is to commence six months before the expiration of the sentence on Charge 1 which makes for a total effective sentence of two years and six months. In practical terms six months on Charge 2 is to be served cumulatively upon the sentence imposed on Charge 1.
49Now Mr Anderson, I will release you under s 20 of the Crimes Act1914 (Cth) after serving five months of the term of imprisonment and upon you giving security by recognisance of $500 and assurance that you will comply with the following conditions.
(a) That you are of good behaviour for two and a half years;
(b) That you are to be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or their nominees for a period of two and a half years;
(c) That you are to attend for assessment and if assessed suitable undergo treatment for the sex offender program or programs to reduce your chance of reoffending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management or their nominees; and
(d) That you are to report to the Werribee Justice Centre at 87 Synnot Street, Werribee, Victoria by 4 pm two days after release from your custody.
50Now the purpose and the effect of this recognisance release order (RRO) is to grant you conditional freedom after five months of the period of imprisonment. The conditions are that you are to be of good behaviour for two and a half years and attend for assessment and participate in the programs as ordered. If you breach the recognisance release order you will be brought back before the Court, most likely before me, to be dealt with for that breach and you may be required to serve your remaining term of imprisonment or the order may be extended or revoked. It may also mean that you forfeit the sum of $500.
51I will shortly provide your counsel with a copy of that order and ask Mr Isaacs to confirm the accuracy of the order. Should Mr Isaacs be satisfied it accurately reflects my intention when sentencing you I will have your counsel obtain your signature on the order. Your counsel will also reiterate to you the consequences of breaching the order. Do you understand that so far, Mr Anderson?
52OFFENDER: Yes, Your Honour.
53HIS HONOUR: Then in addition and as a result of sentencing you in respect of Charges 1 and 2 which I understand are class 2 offences pursuant to the Sex Offenders Registration Act2004 (Vic) the registrable period is 15 years. That means you will be registered as a sex offender for 15 years.
54I will have the document that explains the registration obligations under that Act[11] explained to you. That will be provided to Mr Isaacs and he will shortly approach you to obtain your signature that you have received the information about the obligations under that Act from him.
[11] Sex Offenders Registration Act2004 (Vic)
55Lastly, I will have the form 16BA which details your offending from June 2019 brought to you via your counsel to obtain your signature as well. Do understand those matters, Mr Anderson?
56OFFENDER: I do, Your Honour.
57HIS HONOUR: Madam Associate, I will now have you provide to Mr Isaacs the relevant forms. Mr Isaacs, if you need more time just let me know.
58MR ISAACS: I am satisfied Mr Anderson understands, Your Honour.
59HIS HONOUR: Thank you. Ms McDonald, did you need to see those before they come to my associate?
60MS McDONALD: Perhaps if I could just confirm the mandatory conditions. Thank you, Your Honour.
61HIS HONOUR: You may have a seat, Mr Anderson.
62MR ISAACS: Your Honour, may I just approach Mr Anderson again?
63HIS HONOUR: Yes, certainly.
64MR ISAACS: Thank you. Your Honour, there are and we can deal with these at the end perhaps, just some custody management issues I'd seek to raise.
65HIS HONOUR: Yes. All right. Thank you. Just while those orders are being done can I just formally indicate that pursuant to s 6AAA of the Sentencing Act1991 (Vic) I declare that but for the plea of guilty I would have sentenced you to a period of imprisonment of four years with a non-parole period of two years and I formally also record that there is no forfeiture order sought. Now Mr Isaacs, custody management?
66MR ISAACS: Thank you, Your Honour. Your Honour, I seek to provide to custody management staff, there's two medications that Mr Anderson currently takes for firstly, blood pressure and secondly, anxiety. I think commonly we just provide those details to the custody management staff. Secondly sir, if it could also be recorded that he does use a CPAP machine at night for his health and simply if that's recorded and that will be provided once it's determined which facility he's at.
67HIS HONOUR: Yes. Can I just also ask, the Sertraline medication is that ongoing or is that the antianxiety medication? That is the - - -
68MR ISAACS: That is.
69HIS HONOUR: That is. I see and does he currently have a prescription for that or does he need to – he does?
70MR ISAACS: He has a current prescription. Whether he is ultimately given the same medication in custody I'll leave that to the respective officers.
71HIS HONOUR: Yes. Well then I formally record that Mr Anderson does have a requirement for blood pressure medication, antianxiety medication which he currently holds a prescription for of Sertraline and he requires the use of a CPAP machine.
72MR ISAACS: As the Court pleases.
73HIS HONOUR: Are there any further matters?
74MS McDONALD: Nothing further, Your Honour.
75HIS HONOUR: All right. With those matters done then I'll ask the custody officer in Court to currently remove Mr Anderson from the Court. I'll have counsel remain behind to obtain copies of materials. Counsel, those orders have been copied for you now. I take it you'll want to see him downstairs, Mr Isaacs. So they'll be provided to you. Is there anything you need further from me?
76MR ISAACS: Nothing further, Your Honour, no. Thank you.
77HIS HONOUR: Thank you. We'll adjourn the Court please.
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