Director of Public Prosecutions (Cth) v Breitkreuz
[2013] VCC 1727
•6 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01276
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| PAUL JOHN BREITKREUZ |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 November 2013 | |
CASE MAY BE CITED AS: | DPP (Cth) v Breitkreuz | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1727 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Robins | |
| For the Accused | Mr D. Gibson |
HER HONOUR:
1 Paul John Breitkreuz, you have pleaded guilty to one charge of accessing child pornography material using a carriage service (charge 1). The maximum penalty for that offence is 15 years’ imprisonment.
2 You have also pleaded guilty to uplifted summary charges, being three charges of visually capturing another person’s genital or anal region. They are summary charges 5, 6 and 7. You have also pleaded guilty to four uplifted summary charges of intentionally distributing an image of another person’s intimate body parts which you had visually captured. Those are summary charges 8, 9, 10 and 11. Each of the summary charges attracts a maximum penalty of two years’ imprisonment.
3 The circumstances of your offending are set out in the Summary of Facts which was tendered as Exhibit A. In brief, the circumstances were as follows. On 14 November 2012 Victoria Police executed a search warrant at your residence. Police seized computer equipment belonging to you. You were cooperative throughout the search, and provided police with your password and email account. The material on your computer equipment was analysed. That analysis showed that between 12 July 2012 and 30 October 2012 you had received and opened emails containing child pornography material. There were 304 pictures and two videos containing child pornography in that material.
4 Those pictures and videos have been categorised using the child exploitation tracking system classifications. There are six classifications, with level 1 being the lowest level. Level 1 shows depictions of children with no sexual activity, but the image is sexually suggestive or sexual in nature. It includes images showing – explicit emphasis on genital areas, nudity, surreptitious images showing underwear, sexually suggestive posing. There were 192 images at level 1. Level 2 shows sexual activity between children or solo masturbation by a child. There were 23 images and two videos at level 2. Level 3 shows non-penetrative sexual activity between children and adults. There were 28 images at level 3. Level 4 shows penetrative sexual activity between children and adults. There were 61 images at level 4.
5 After the material was reviewed I was provided with a table indicating the material that was relied upon in relation to the summary charges. That table was tendered as Exhibit E. Amongst the material found on your computer were images described as up‑skirting images. These images were taken by you of females in public places, with you using your phone to take images from underneath the person’s skirt.
6 Charge 5 covers four images dated 18 July 2012. On 18 July 2012 you attached images including the images that are the subject matter of summary charge 5 and sent them in an email. This email appears to have been sent to a person who had also been taking similar images. You said that you had taken the pictures of a 12/13-year-old at a supermarket, and asked to see more of this person’s work. The distribution of that material is the subject matter of summary charge 6.
7 Summary charge 7 relates to 4 upskirting images dated 25 July 2012 of a girl in a school uniform. On 25 July 2012 you sent images, including the images which are the subject matter of summary charge 7, in one email to two recipients. Prior to sending the email you emailed the recipients, telling them that you trusted them with the new pics, and said that “she was about 13/14”, and asked to see more of their work. You also said that you would not be putting these images up on a particular site because it was too risky. That distribution is the subject matter of summary charge 8.
8 Summary charge 10 refers to 3 upskirting images dated 30 July 2012 of a female wearing a light coloured skirt and a green jumper. On 30 July 2012 you attached images including the images which are the subject matter of summary charge 10, and sent them to a person. The text in the email refers to your hope that the person would send you videos “cos I need to cum”. This distribution of images is the subject matter of summary charge 9.
9 On 6 August 2012 you attached the same images in one email to the two recipients to whom you had previously sent images in charge 8. They were the same images that were referred to in summary charge 10. You say in the email that these were taken at the local shopping centre. This distribution of images is the subject matter of summary charge 11.
10 You were interviewed by police on 14 November 2012. You told police that you had become curious about child pornography material at the age of fourteen or fifteen after you were sexually abused by a male teacher at school. You said that you had been viewing child pornography for approximately four years but had tried to cut down. You said you viewed the material for sexual pleasure. You said that you did not save or collect child pornography material but would delete your browsing history to “try and remove any traces of what I’d done”. You said that you were concerned as you shared your computer with your partner and did not want her to find the material. You said that you felt disgusted after viewing the images.
11 You said you had stopped making up‑skirting videos with your mobile phone in supermarkets, as you could not do it very well. You told police you had started up‑skirting as a replacement for viewing child pornography material, and your preference was for the up‑skirting. You said you knew that viewing the images and creating the up‑skirting images was wrong, morally and legally.
12 In sentencing you I have taken into account your personal circumstances. I have derived those circumstances from what your counsel said on your behalf, the evidence given by your mother, and the material tendered on your behalf. A psychological report from Ms Ana Torres, dated July 2013 and revised October 2013, was tendered as Exhibit 2. A further psychological report from Ms Carla Lechner, dated 15 October 2013, was tendered as Exhibit 3. I was also provided with a copy of a letter dated 30 November 1999 from CASA in relation to a sexual assault on you in that year. That was tendered as Exhibit 5.
13 You are now 28 years old. You had a happy and stable upbringing with a positive school experience. You played a considerable amount of sport, both in and out of school. In Year 9 you were sexually molested by a teacher at school. You received counselling for that. I note that the matter was reported to police but did not ultimately proceed in court. The teacher left the school, and you continued at that school. I note that the CASA letter says that you displayed symptomatology relating to post-traumatic stress disorder. Your mother said that you had ceased engaging in counselling after some time, as you no longer wished to discuss the matter.
14 You left school to study hospitality, and worked in a hotel. You travelled and did various jobs, and then in 2008 started an apprenticeship with your father, who is a painter. You completed your apprenticeship, and in 2010 you started your own painting company. In 2012 you formed a larger company. Apparently that company is successful.
15 You have been in a relationship with your partner for approximately two years. You and your partner had a daughter in December 2012. It appears that you initially told your partner and her parents about your offending. They have remained supportive of you, and provided references. You only more recently told your parents about your offending.
16 Ms Torres has been treating you, and since November 2012 you have attended eleven sessions. Ms Torres says that you have been suffering extremely severe depression levels with severe stress and moderate anxiety in contemplation of these proceedings. Ms Torres says that you warrant a diagnosis of major depression. She says you have reported to her ideas of suicide. Ms Torres describes voyeuristic behaviour engaged in by you, and says that prompts a differential diagnosis for consideration of voyeuristic disorder.
17 Ms Torres has been focusing on the reduction of your inappropriate sexual behaviour. You have told her that you have no longer been engaging in viewing child pornography or voyeuristic behaviour. According to her you have gained more insight into your thought patterns and impulse-control issues. Your feelings of disgust became more apparent when you became a father and were able to develop empathy rather than self-identification with the subjects you were observing. In respect of the voyeuristic behaviour, it appears that you still have some work to do on that in terms of your insight. Ms Torres has also been addressing issues around your relationship with your partner. Ms Torres suggests further investigation, in respect of possible post-traumatic stress disorder in relation to the past incident at school. Ms Torres recommends at least ongoing fortnightly sessions.
18 Ms Lechner also refers to the sexual assault at school. She says that this precipitated confusion for you about your sexual orientation, and subsequently you engaged in a degree of sexual promiscuity and “in more recent years a pushing of the boundaries of sexual arousal and gratification”. She says a specific diagnosis is difficult to make but that she considers at the time of your offending you were exhibiting symptoms of paedophilic disorder. She recommends specialist assessment by a sexual offenders program in addition to ongoing counselling with Ms Torres.
19 Ms Lechner describes you as having been most candid in your interview. She considers that you are currently exhibiting symptoms of a moderate level of depression. She says you express shame, guilt and remorse for your actions, and she says you have told her that it was a relief to be caught, as you knew you had a problem and needed help. Ms Lechner would currently rate you as a moderate risk of reoffending on the basis of your history, the longstanding nature of your sexual addiction, and the escalating nature of your behaviour prior to your apprehension.
20 In sentencing submissions your counsel principally relied in mitigation on the following factors:
(a)Your plea of guilty.
(b)Your insight and remorse.
(c)Your cooperation with the police.
(d)The background of post-traumatic stress disorder resulting from the assault on you as a boy.
(e)The amount of images being at the lower end for this type of offending.
(f)There were no images at the highest end of the classification, and the majority of images were at the lowest end.
(g)You have no prior offending.
(h)Your good prospects of rehabilitation.
21 Your counsel submitted that a community correction order would meet the sentencing requirements of general deterrence, community protection, punishment and specific deterrence.
22 The prosecutor’s sentencing submissions drew my attention to the relevant legislation in respect of charge 1, which is a Commonwealth offence, as well as the relevant provisions which apply to the uplifted summary offence charges, which are State offences. The prosecutor submitted that general deterrence was of paramount importance in this type of offending, and addressed the nature and circumstances of your offending. The prosecutor also referred to the difficulty in detecting up‑skirting offending.
23 The prosecutor submitted that, objectively, child pornography offending is a very serious offence. It was conceded that the volume of child pornography material was at the lower end, but the prosecutor submitted that there was a significant proportion of images in the level 4 category, which was an aggravating feature. The prosecutor also said that you were sharing child pornography, although you were not gaining anything commercially from it. You accessed child pornography over a period of 3½ months.
24 The prosecutor said that you had been fully cooperative and made full admissions and appeared to have insight into your offending, although there were some matters in Ms Lechner’s report which would suggest that the court would be somewhat guarded in relation to your prospects of rehabilitation. The prosecutor also conceded that in your current mental state a term of imprisonment might weigh more heavily on you.
25 The prosecutor submitted that your lack of prior convictions ought to have less weight in this case, as offences involving child pornography were often committed by people of otherwise good character.
26 The prosecutor described the up‑skirting images being taken and then distributed as being a gross invasion of the privacy and dignity of those concerned. The prosecutor submitted that it was aggravating in the circumstances that you were taking images on some occasions of children in school uniforms and that you took pictures on three different occasions. The prosecutor submitted that a term of imprisonment would be the only appropriate sentence.
27 Paul Breitkreuz, clearly your offending is serious. The courts and Parliament have frequently expressed their horror and disgust at the making and distribution of child pornography material. The maximum penalty reflects that. Child pornography material is being accessed and distributed via the internet on a massive scale. As you apparently understand, the making of child pornography images involving children in the categories 1–4 means that these real children, somewhere, at some time, have been the subject of sexual abuse of some type. Clearly the material in category 4 that you had was of a particularly serious nature. I also consider the material in the two videos to be of an extremely offensive nature. It should not have required the birth of your daughter for you to understand how wrong the creation and distribution of this material is.
28 I accept that your sexual conduct has been affected to an extent by the incident which occurred when you were fourteen or fifteen at the school. It is of concern that you did not continue with your counselling then, and that once you started looking at child pornography you did not stop.
29 It is very concerning that you moved from viewing child pornography to engaging in what appears to have been some type of thrill-seeking activity for you of engaging in the up‑skirting behaviour. That means you were not just content to look at what other people had done, but you were going out to take your own images for sexual gratification, and exchanging images with other people of a like mind. That is deeply disturbing behaviour. Victims of such behaviour would be distressed if they became aware of what you were doing. The offending is difficult to detect and must be appropriately punished when it is detected.
30 There are a number of matters which I accept operate strongly in mitigation of sentence in your case. You immediately cooperated with the police and made full admissions. You then began counselling, and have continued with that counselling. From the reports from Ms Torres, you have been cooperative and are making considerable progress in that counselling.
31 You are entitled to a significant discount for your plea of guilty, which has saved the expense and inconvenience of a trial. I also accept that your plea of guilty is an expression of your remorse for your offending. I accept that you have been ashamed and disgusted with yourself, particularly in relation to the child pornography. You have expressed your shame and remorse to various people, including counsellors and family members.
32 I consider your prospects of rehabilitation to be good if you continue with the counselling and your commitment to your family. Your partner says in her reference that she was shocked at what you had done and could not understand why you had done it. The discovery of your offending has caused difficulties between you but she has continued to be supportive of you. She says that you changed when your daughter was born, and that you are very hardworking, a good partner to her, and what she describes as an incredible Dad to your daughter. She says that you have been depressed and withdrawn but that she believes you are getting better.
33 Your parents-in‑law say that you have discussed the matter with them. They describe you as a very dedicated father and partner who works hard to build your business and to support your family. They say they will continue to actively support you.
34 Your mother gave evidence that she and your father will continue to support you. Your mother described your distress at the incident which had occurred at the school. She said you are a solid hard worker and that you have always worked. She described you as having a kind heart and being a warm and loving person who likes to do the right thing so that people will like you. She said that you are in a very loving relationship with your partner and that you are wonderful with your daughter.
35 This support for you was, of course, in place while you committed these offences and did not prevent you from committing these offences. I consider that now your offending is out in the open that support will be very important to your continuing rehabilitation.
36 You have no prior offences. You are hardworking. You are clearly a capable person who is capable of engaging in counselling and gaining insight into your problems. It appears that at some points you have minimised your behaviour to yourself but I consider it likely that you now understand the seriousness of the situation that you place yourself and others in and that you will make determined efforts to avoid this kind of behaviour in the future. For those reasons I consider your prospects of rehabilitation to be good, provided that you are engaging in ongoing counselling.
37 It is of significance that Ms Lechner recommends that you should be assessed by the sex offenders program, given that she considers that you are at moderate risk of reoffending and demonstrate symptoms of paedophilic disorder. I consider that that assessment by that program would be of considerable assistance in ensuring that you do not repeat this type of offending.
38 While I accept that your sexual behaviour was affected by sexual abuse at school, from the material before me I am unable to conclude that you continue to suffer from a post-traumatic stress disorder as a result of that assault. I do accept that you are suffering from at least moderate levels of depression, and that a sentence of imprisonment would be likely to make that depression worse.
39 General deterrence is a very important sentencing consideration. Others must be discouraged from engaging in similar behaviour. Denunciation, punishment and community protection are also important sentencing considerations. In this case I consider that those sentencing objectives would be best met by a community correction order. A community correction order would provide for your counselling treatment and supervision over a lengthy period of time. You would also be able to engage in community work by way of punishment. That work would enable you to put something back into the community. I consider the interests of community protection, particularly, would be best served by you engaging in programs in order to make sure that you do not repeat this offending.
40 I have considered the cases to which I was referred, and current sentencing practices for these types of offences. There is more information available, of course, in relation to the child pornography material charge. Having looked at other cases, in view of the limited amount of material that was found, the length of time over which you were offending, and the circumstances, I consider that a sentence of imprisonment is not required in this case.
41 I have had you assessed for a community correction order. I have received a report. The person assessing you says that you have been assessed as a low risk offender. This is according to a tool used to determine the general risk of reoffending, rather than the specific risk of sexual reoffending. The person assessing you says to determine the risk of that, an assessment by sex offender programs would be recommended. The author of the report considers that you would be suitable for a community correction order.
42 Mr Breitkreuz, if you agree, I would propose to place you on two community correction orders. One order would apply to charge 1, and the other order would apply to the uplifted summary charges. In order for you to consider whether you are prepared to consent to such an order being made, I will now tell you what the conditions I would impose are.
43 In respect of charge 1, I would impose a community correction order for a period of two years. The special conditions would be that you do 160 hours of unpaid community work over the two years; that you engage in mental health assessment and treatment as directed; and that you engage in offending-behaviour programs as directed. There would also be a requirement that you be supervised during the period of the order, which as I understand it means that you would be required to meet at regular intervals for supervision meetings with Corrections staff.
44 In respect of the summary charges, I would propose to put you on a community-based order for a period of one year with the same conditions except that you would be required to do 80 hours of community work. The orders would run concurrently except that you would be required to serve the 160 hours of community work on the Commonwealth community correction order cumulatively on the 80 hours imposed on the State order. Accordingly you would be required to perform a total of 240 hours of community work.
45 Mr Breitkreuz, the report provided includes a consent form which indicates that the requirements of the order have been explained to you, and the consequences of failing to meet your obligations have been explained to you, as well as certain other matters. It is very important that you understand that if you breach the order by failing to meet the requirements or by reoffending then you will be brought back before me on breach of the order, and I can resentence you in respect of these matters.
46 Mr Breitkreuz, do you consent to the community correction orders being made?
47 PRISONER: Yes, Your Honour.
48 HER HONOUR: On Charge 1 of accessing child pornography material using a carriage service you are convicted and sentenced to a community correction order for a period of two years with the conditions I have just set out.
49 On summary charges 5, 6 and 7 of visually capturing another person’s genital or anal region and summary charges 8, 9, 10 and 11 of intentionally distributing an image of another person’s intimate body parts which you had visually captured you are convicted and sentenced to a community correction order for a period of a year with the conditions I have just set out.
50 But for your plea of guilty I would have sentenced you on Charge 1 to a term of imprisonment of 12 months with a non-parole period of 8 months. In respect of the summary charges 5, 6, 7, 8, 9, 10 and 11 I would have sentenced you to an aggregate term of imprisonment of 6 months.
51 Mr Breitkreuz, in a minute I am going to ask my associate to come with your counsel so that you can sign the form that you need to sign. If you could just take your seat for a moment. There is one matter I need to deal with which is the Sex Offenders Registration, which paperwork I have neglected to have done but I now recall that it needs to be done and I understand the report - what are the classes of offences? You did tell me before but I have not brought my note with me.
52 MR ROBINS: It is a single Class 2 offence which - - -
53 HER HONOUR: So that is Charge 1, is it Class 2 offence?
54 MR ROBINS: That's correct, Your Honour.
55 HER HONOUR: And it is reporting for a period of eight years, is that correct?
56 MR ROBINS: Yes, Your Honour.
57 HER HONOUR: Thank you. So Mr Breitkreuz, you will be required to report for eight years under the Sex Offender Registration Act which sets out various requirements. In a moment my associate will do that paperwork also and you will be asked to sign a piece of paper acknowledging that you have received that information which sets out your obligations. So could you just take your seat for a moment and we will organise that.
0
0
0