Director of Public Prosecutions (Cth) v Blythe
[2023] VCC 931
•5 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00007
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONAN BLYTHE |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2023 | |
DATE OF SENTENCE: | 5 June 2023 | |
CASE MAY BE CITED AS: | DPP (Cth) v Blythe | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 931 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - possession of child abuse material – single day possession – relatively low level objective gravity - youthful offender – guilty plea after sentence indication – remorse – general deterrence – parsimony - imprisonment not required
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic.); Criminal Code 1995 (Cth.); Sex Offenders Registration Act 2004 (Vic.)
Cases Cited:R v Booth [2009] NSWCCA 89; DPP v Garside [2016] VSCA 74; Chenhall v The Queen [2021] VSCA 175; R v Mills [1998] 4 VR 235
Sentence: Community Correction Order for 2 years unpaid work and treatment for causes of offending behaviour - registration under the Sex Offenders Registration Act 2004 (Vic.) for 8 years - s 6AAA declaration – 9 months’ imprisonment and a Community Correction Order of 12 months
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth DPP | Mr G. Barr | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr R. Nathwani | Emma Turnbull Lawyers |
HIS HONOUR:
1Ronan Blythe, on 8 December 2020, the Australian Border Force (‘ABF’) and Victoria Police executed a search and seizure warrant at your house in Pentland Hills.
2Police seized your phone and your computer. The devices were later analysed, and police identified videos which were categorised as child abuse material.
3Nearly two and a half years later, on 24 May 2023, your matter proceeded before me by way of a Sentence Indication Hearing. On that day, I indicated that, if you pleaded guilty at the earliest opportunity to a single charge of possession of ‘child abuse material’[1], contrary to ss 51G(1) of the Crimes Act 1958 (Vic), the Court would impose a Community Correction Order. I did not specify the length of the order; nor did I state the conditions that would be included in the Order.
[1] ‘Child Abuse Material’ is defined in Crimes Act 1958 (Vic.), s 51A.
4After a brief adjournment, your counsel expressed your willingness to accept the court’s indication. The case was adjourned, and on 31 May 2023, you were arraigned and pleaded guilty to the charge. The maximum penalty for this offence is 10 years’ imprisonment.
5You are to be sentenced on the basis of the prosecution opening prepared for the sentence indication, which is an agreed summary.[2] The following summary of your offending is drawn from this document.
[2] Summary of Prosecution Opening for Sentence Indication dated 22 May 2023.
Summary of Offending
6Several weeks after police conducted the search at your house, further warrants were executed on your phone and your computer. During a preliminary analysis of the computer’s data, child abuse material was located, and as a result the computer was subjected to a comprehensive forensic analysis. Police identified 201 videos which have been categorised as child abuse material. 109 of these videos were unique files; a number of the videos were duplicated and stored in multiple folders on the device.
7The 201 videos were subjected to analysis in accordance with the Interpol baseline schedule relating to child abuse material. 67 of the videos were deemed to be Category 1 material; 138 of the videos were classified as Category 2 material.
8Category 1 material depicts a real prepubescent child perceived to be under 13 years of age involved in a sex act; witnessing a sex act; or a depiction that is focussed or concentrated on the anal and/or genital region of the child.[3]
[3] Summary of Prosecution Opening for Sentence Indication dated 22 May 2023, [10].
9Category 2 material refers to other material which is considered to be child abuse material as defined in s 473.1 of the Criminal Code 1995 (Cth.), that does not fit within Category 1.[4]
[4] Summary of Prosecution Opening for Sentence Indication dated 22 May 2023, [10].
10It is important not to lose sight of the fact that behind these somewhat anodyne descriptions are real children. The images of those real children are on permanent display around the world. I will return to discuss the significance of this later in these reasons.
11Some examples of the most serious child abuse videos found on your device included:
(i) Children performing oral sex on adult males;
(ii) Children performing oral sex upon other children;
(iii) Adult males performing anal and vaginal sex on children; and
(iv) An adult male performing anal sex on an infant.
12The forensic analysis of your computer revealed a number of relevant features about the security and organisational structure of the device:
(i) When the computer was powered on, the logon screen and desktop referred to ‘Ronan Blythe’ and required the entry of a password.
(ii) Only one user account, named ‘ronan’, had been setup. It was password protected with a PIN.
(iii) The computer was running the Windows operating system which was recorded as having been installed on 17 July 2019; the registered owner of the operating system was ‘[email protected]’.
(iv) The 201 videos classified as child abuse material were contained in the “E” drive under a folder titled “Stuff” and saved into sub-folders - including one folder titled “CP” – and were accessible by the ordinary user of the device.
(v) The folders and the ‘CP’ sub-folder were created by a user under the name of “ronan”. Some of the video files were stored in folders titled “CP” and had file names that were sexually explicit;
13An examination of the ‘jump lists’ – the recently opened items by a program – was conducted with respect to the user ‘ronan’ in the folder ‘Stuff’. This analysis revealed that, between 23 August 2019 and 17 September 2020, the user ‘ronan’ opened 274 files in the VLC media player.
14Three of those files, which were accessed on 25 August 2019, contained child abuse material; the files were located in sub-folders marked ‘CP1’ and ‘CP3’. Although one of the file names was suggestive of pornography, none of the file names were suggestive of CAM. I note, for completeness, that the analysis could not determine for how long the videos were viewed.
15By your plea of guilty, you have provided a cogent admission that you intended to possess the child abuse material contained within all 201 videos as at the 25th of August 2019.
Record of Interview
16On 8 December 2020, the same day that the search and seizure warrant was executed at your house, you participated in a field Record of Interview with an ABF officer. You stated that you owned the computer that was located in your bedroom, the computer was password protected, and that only you had access.
17On 21 April 2021, some five months later, you participated in a formal Record of Interview with the AFP during which you read a statement. The statement, which someone else prepared for you, is relevant to my assessment of your remorse for this offending; it is worth reproducing in full:
‘I have been given legal advice to make a no comment statement. The allegations are some years ago, some four – three, four, however many years ago. At that time, I was younger. The computer that we had was second hand, and made up from various parts that I either bought or swapped with friends. At that time, it was a family computer which was able to be used by all my family and my friends from school, sport, and socially who visited or stayed over. As I was heavily involved in sport, I was not allowed to have my phone after hours, and it was always left on charge in the computer room. I have never knowingly or intentionally downloaded or viewed any inappropriate images of any kind, and I have no knowledge that this information existed. I didn’t ever have security passwords on either my phone or my computer, as it was needed to access the internet for anybody using it, because we had no Wi Fi, we lived rural.’
18In the interview, you stated that you had no knowledge of the folders titled ‘CP’ or their contents, and that you had never looked at child abuse material on your computer. When asked whether anyone else used the computer, you responded: ‘no comment’.
Objective Gravity of the Offending and Relevant Sentencing Principles
19The possession of child abuse material is a callous and predatory crime.[5]
[5] R v Booth [2009] NSWCCA 89, [40].
20The courts regard offending such as yours as very serious morally depraved conduct that causes immense harm to children, both in Australia and across the world.[6]
[6] DPP v Garside [2016] VSCA 74.
21The key principles in sentencing for offences of this kind are well established.[7] The authorities speak with one voice that a term of immediate imprisonment will ordinarily be imposed for offending of this kind.[8]
[7] Chenhall v The Queen [2021] VSCA 175 [43].
[8] Ibid, [62].
22In the New South Wales case of R v De Leeuw, the Court of Criminal Appeal outlined a series of propositions that assist courts assessing the objective gravity of child abuse material offences;[9] these propositions have been endorsed by Victorian courts.[10]
[9] R v De Leeuw [2015] NSWCCCA 183, [72].
[10] See DPP v Garside [2016] VSCA 74, [25]; Chenhall v The Queen [2021] VSCA 175, [42].
23Applying these principles, the following features of your offending are relevant to my assessment of its objective seriousness:
(i) First, the nature and content of the material you possessed; in particular, the age of the children and the sexual activity depicted. In this case, some of the material you possessed was particulary depraved. Police identified numerous videos of pre-pubescent children engaged in sexual penetration with adults and, most seriously in my view, a video of an adult man performing anal sex on an infant.
(ii) Second, you possessed 201 child abuse material videos. 67 videos were classified as Category 1 material; 138 videos were classified as Category 2 material. Some unknown number of these videos were duplicates. While the prosecution concedes that this is a ‘modest volume’ of material,[11] this consideration is secondary to the type of material and its significant degree of depravity.[12]
(iii) Third, you possessed the material for personal use. There is no evidence that you intended to either sell the CAM or distribute it to others.
(iv) Fourth, you did not profit from your offending.
(v) Fifth, the evidence does not establish the number of children depicted - and thereby victimised - in the child abuse material you possessed.
(vi) And sixth, you possessed the child abuse material for a single day, the 25th of August 2019.
[11] Prosecution Submissions on Sentence Indication dated 22 May 2023, [11].
[12] DPP v Latham [2009] TASSC 101 at [35].
24The prosecution submits that, when one considers these features, the objective gravity of your offending ‘is approaching the mid-level on the spectrum of seriousness’.[13] I accept this assessment.
[13] Prosecution Submissions on Sentence Indication dated 22 May 2023, [12].
25In sentencing you, it is important to recognise that the files you possessed were not created in a vacuum: child abuse material cannot come into existence without the exploitation and abuse of children somewhere in the world. The children involved were profoundly damaged by its creation, and, to use the words of her Honour Justice Simpson of the New South Wales Court of Criminal Appeal, ‘those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material’.[14]
[14] R v Booth [2009] NSWCCA 89, [40].
26It is for this reason that general deterrence is the paramount consideration in the sentence I impose.[15] Given the primacy of general deterrence and denunciation in the sentencing process for offending such as yours, your personal factors – such as your prior good character, positive antecedents, and the correspondingly reduced need for specific deterrence – must be given less weight in this sentence.[16]
[15] R v Booth [2009] NSWCCA 89, [39]; R v De Leeuw [2015] NSWCCCA 183, [70].
[16] Heathcote (a Pseudonym) v R [2014] VSCA 37, [40]; DPP (Cth) v Zarb [2014] VSCA 347, [34].
Personal Circumstances
27With this in mind, I now turn to discuss your personal circumstances.
28You were born in March 2000 and raised in Pentland Hills, just outside of Bacchus Marsh.
29You were educated at St Patricks School in Ballarat, where you completed Year 12. You planned to join the military and underwent the relevant testing and interview process; however, in light of your offending, you will be unlikely to pursue this career path.
30Since finishing high school, you have worked in a number of labouring roles, including as an arborist, a fencer, and in construction. Previously, you had commenced a plumbing apprenticeship, although this ended when your employer became aware that you could not obtain a Working With Children check. You currently have aspirations of undertaking an electrical apprenticeship, and I accept that your employment prospects are favourable. This is relevant to your prospects of rehabilitation.
31Your parents have recently separated, and you currently live with your father, Michael, who has been present in court to support you throughout this process. Your father was recently diagnosed with prostate cancer, and I accept that you will soon be responsible for his on-going care. Mr Nathwani submitted on your behalf that, if you are imprisoned, your father will be subject to additional hardship.
32Consistent with the approach taken in the case of Markovic,[17] family hardship of this kind will only be considered as a mitigating circumstance in sentencing for state offences if it rises to the level of ‘exceptional hardship’. Your counsel did not seriously press the submission that ‘exceptional hardship’ is established due to your father’s illness, and nor do I consider that such circumstances are made out.
[17] Markovic v The Queen [2010] VSCA 105.
33However, in the same case, the Court of Appeal stated that ‘an offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation.’[18] Accordingly, I have taken this factor into account in considering the appropriate sentence in your case.
[18] Markovic v The Queen [2010] VSCA 105, [20].
Matters in Mitigation
34Your plea of guilty is a significant factor in mitigation. Although your plea was not an early one, by pleading guilty you have saved court time and avoided the need for a contested trial. Given the enduring disruption of the pandemic upon the court system, your plea is of particular utilitarian value; I have mitigated your sentence accordingly.
35In addition, by pleading guilty I accept that you have expressed remorse for your offending, albeit to a limited degree. As I have previously outlined, when interviewed by police you twice denied any responsibility for the child abuse material discovered in your possession.
36In a report provided to me by Corrections Victoria, you were assessed as a low-level risk of re-offending. At that assessment, you told a Corrections officer that ‘from a third person perspective about the long-term effects that “this type of offending” can have on victims (children) and how people (in general) “create a need” and therefore a “market”. Although I accept the assessing officer’s assessment that you have developed ‘some insight’ into your offending, I do not consider that you have taken full responsibility for this crime. I have sought to reflect this in the order that I will make today.
37The delay associated with the finalisation of your case is another significant mitigating factor. The police raided your house nearly two and a half years ago, and since that time you have ‘been left in a state of uncertain suspense’.[19] Notwithstanding that some part of this delay was due to you contesting these charges, I have mitigated your sentence to reflect the anxiety and hardship you have experienced due to the protracted passage of your matter through the justice system.
[19] R v Todd [1982] 2 NSWLR 517, cited with approval in R v Mill (1988) 166 CLR 59 at [64].
38You have no prior convictions. However, you did commit an offence since engaging in the conduct giving rise to this charge. In late 2020 you imported fifteen prohibited firearm silencers in breach of the prohibition in the Customs Act 1901 (Cth).[20] You pleaded guilty and on 10 June 2022 you were released without conviction on entering a recognoisance release order of $100 to be of good behaviour for 12 months.
[20] S 233BAB(5).
39I do not consider this further offending to be of any particular significance in this sentencing exercise as it is for an entirely different offence.
40The sentencing principle of parsimony is of significance in your case. The principle finds statutory form in s 5(4) of the Sentencing Act 1991 (Vic.) which provides that a court may not sentence an offender to a custodial sentence if the purposes for which sentence is imposed can be achieved by a sentence that does not involve confinement of the offender.
41Finally, your age is a highly significant consideration in sentencing you. You were 19 years old at the date of the offending; you are now 23.
42In the case of R v Mills,[21] the Court of Appeal endorsed several general principles about sentencing youthful offenders. Two of these principles have particular application in your case:
(i) First, that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises; and
(ii) Second, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment and incarceration in an adult prison may in fact lead to further criminality.
[21] [1998] 4 VR 235.
43These principles have been repeated on many occasions since. They are significant in your case and, along with the other considerations to which I have referred, ultimately convince me that a sentence that does not involve you being required to serve an immediate period in custody is appropriate.
Consideration
44In the Victorian case of Garside, the Court of Appeal observed that a Community Correction Order would not ordinarily be an appropriate disposition for offending such as yours.[22]
[22] Garside [2016] VSCA 74 at [74]
45While it is not necessary for me to categorise your case as ‘exceptional’ before I am able to impose a non-custodial disposition, the following features convince me that this is the appropriate outcome for both you and the community more generally:
(i) The relatively low objective seriousness of your offending;
(ii) Your lack of prior convictions;
(iii) Your age; and
(iv) Your plea of guilty.
46I have also had regard to the other matters to which I have earlier referred including the principle of parsimony.
47I note that a Community Correction Order can operate both punitively and rehabilitatively. I have structured the Order I am imposing to achieve both outcomes. I have had regard to the recommendation in the assessment report that you be assessed for a suitable program to address your crimogenic needs. That recommendation is that the Order be of at least 18 months’ duration to achieve this outcome. In so doing I have had regard to the need to address the underlying causes of your offending.[23] These causes are not apparent to the court on the basis of the material that has been filed.
[23] Sentencing Act 1991 (Vic.), s 48D(2)(a)
Orders
48Ronan Blythe, on the charge of possession of child abuse material you are convicted and sentenced to a Community Correction Order of 2 years’ duration.
49There are a number of standard terms that apply to this Order:
(i) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(ii) You must comply with any obligations or requirements prescribed by the regulations.
(iii) You must report to and receive visits from the Secretary or their delegate during the period of the order.
(iv) You must report to the Ballarat Community Correction Centre within two clear working days after the order comes into force, that is, within two clear working days of today.
(v) You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.
(vi) You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.
(vii) You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure you comply with the order.
50In addition to these general conditions, which apply to every Community Correction Order, I impose the following special conditions on the Order that I impose on you:
(i) You must perform 250 hours of unpaid community work;[24]
(ii) You are to be supervised, monitored and managed as directed by the Secretary;[25] and
(iii) You must undergo treatment and rehabilitation as directed in a program or programs that address factors related to your offending behaviour.[26]
[24] Sentencing Act 1991 (Vic.), s 48C.
[25] Sentencing Act 1991 (Vic.), s 48E.
[26] Sentencing Act 1991 (Vic.), s 48D(3)(f).
5180 hours satisfactorily undertaken by you in such programs are to count as hours of unpaid community work.[27]
[27] Sentencing Act 1991 (Vic.), s 48CA.
52Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that, but for your plea of guilty, I would have sentenced you to 9 months’ imprisonment to be followed by a Community Correction Order of 12 months’ duration.
53Finally, the offence of which you have been found guilty is a registerable Class 2 offence under s 7(3) of the Sex Offenders Registration Act 2004 (Vic.).[28] As a registerable offender, you are required to report under that Act for 8 years.[29]
[28] Sch. 2, item 15.
[29] S 34(1)(a).
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