Director of Public Prosecutions (Cth) v Brown
[2016] VCC 1773
•21 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00145
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MICHAEL LESLIE BROWN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2016 | |
DATE OF SENTENCE: | 21 November 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v Brown | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1773 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Criminal Code 1995 (Cth); Crimes Act 1958 (Vic); Crimes Act 1914 (Cth); Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010; Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:DPP (Cth) & DPP v Garside [2016] VSCA 74; R v Porte [2015] NSWCCA 174; R v Pajic [2009] 23 VR 527; R v Dodd (1991) 57 A Crim R 349
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Lye | Commonwealth Director of Public Prosecutions |
| For the Accused | The accused was not represented by counsel |
HER HONOUR:
1 Michael Brown, you have pleaded guilty to one charge of accessing child pornography material using a carriage service contrary to s.474.19(1) Criminal Code 1995 (Cth). The maximum penalty applicable to that offence is fifteen years’ imprisonment. You have also pleaded guilty to one charge of knowingly possessing child pornography, contrary to s.70(1) Crimes Act 1958 (Vic). The maximum penalty applicable to that as at the date of your offending is five years’ imprisonment.
2 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that I regard the facts in this case as most serious and disturbing.
3 I turn then to a brief summary of your offending.
4 Before I do that, I note you chose to represent yourself at your plea hearing. Solicitors had acted for you previously (during the resolution of the indictment stage) as I understood it, and you are of course, entitled to represent yourself, but as I have said today, it appears you had some further advice and I am pleased you have obtained that.
5 On 22 October 2015, at approximately 7.05 am, Australian Federal Police (AFP) members attended your home in Roxburgh Park, to execute a search warrant pursuant to the Crimes Act (Cth). You were present at the time of the execution of the search warrant.
6 The warrant was executed to investigate information received by the AFP that on 14 August 2015, internet protocol (IP) address 115.69.8.66 was being used to access child pornography files. Investigations revealed that IP address was registered to you at your address in Roxburgh Park.
7 The following items were located and seized at your property:
(i)an Apple Mac Pro computer;
(ii)A Fujitsu hard disk drive and an Apple MacBook Pro laptop computer.
You were cautioned and informed of your rights and participated in a field interview during the execution of the warrant.
8 During that interview you stated that there was “a very possible chance” you had child pornography images on your computer. You said that a month or two ago you downloaded the peer-to-peer software “Vuze” to your Apple Mac Pro computer and while using it to search for normal movies you inadvertently downloaded child pornography.
9 You said you used the search term “porn” on Vuze to search for adult pornography movies and came across child pornography. You said you had not used any other search items besides “porn” to search for pornography on Vuze. You said you downloaded a zip file which had Asian writing as a file name, opened it and hundreds of video and image files were “unpacked” into different folders on your computer. You could not say how many child pornography files were on your computer as “that file was huge”, gigabytes.
10 You said you were “curious about the zip file as it was Asian so thought you’d see what it was”. You looked at a few of the files which contained child pornography material. You felt conflicted viewing child pornography, curious, yet feeling sickened. You said you were not at all aroused by viewing child pornography. After initially viewing the child pornography material you had another look at the material, “I viewed it maybe twice”.
11 You had not deleted the child pornography material as you were “stupid” and did not think of deleting it. You said you accidently downloaded child pornography about eight to ten years ago and had deleted those images. You were arrested and transported to Craigieburn police station. At that time you declined to participate in a formal record of interview, which, of course, was your right. You were subsequently charged and bailed.
12 There had been an analysis undertaken of the seized material, classified using the Australian National Victim identification Library Classification (Exhibit A, paragraph 8).
13 An analysis of the seized electronic devices revealed a total of 2,843 unique child pornography files. In relation to the various categories of the Identification Library, there were 1,144 images involving Category 1 and nine videos.
14 There were 67 images and 3 videos relevant to Category 2. There were 1,083 images and 10 videos referable to Category 3, adult/child non-penetration. There were 384 images and 99 videos, and a further 2 videos in Category 4, adult/child penetration. The further 2 videos having been downloaded in 2013 (that start date of Charge 1). I will come back to that. There were 32 images and 9 videos relevant to Category 5, showing sadism/bestiality/child abuse, and one image, Category 6, animation. A sample of the file names of the child pornography material identified included those referred to in Exhibit A (paragraph 10).
15 The 2,711 image files and the 132 video files contained on the computers were able to be viewed by the user of the computers, that is, they were non-deleted files. The child pornography material identified on the Apple Mac Pro computer had file creation dates between 4 August 2015 and 10 October 2015. The child pornography material was related in various sub-folders within the computer directory. A review of the completed downloads recorded by the software Vuze, indicated child pornography material downloaded on numerous separate occasions between 4 August 2015 and 10 October 2015.
16 The two videos containing child pornography material identified on the Apple Mac Book Pro laptop computer both had file creation dates of 27 October 2013. No child pornography files were identified on the Fujitsu hard disk drive.
17 You have pleaded guilty to the charges on this indictment and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial and there is a utilitarian benefit to the community following you entering a plea of guilty to these charges. The utilitarian benefit of a plea of guilty under s.16A(2)(g) has recently been confirmed in DPP (Cth) v Thomas[1] and Kim & Fang v R[2]. Also relevant, and I take into account, is the timing of your plea of guilty, and this was indicated by you at a committal mention, that is at the earliest opportunity.
[1] [2016] VSCA 237
[2] [2016] VSCA 238
18 I was provided with a relevant chronology by the prosecution. You were charged and bailed to 23 October 2015 for a filing hearing at the Magistrates’ Court and the matter was adjourned to a committal mention on 22 January of this year. On that date the matter was further adjourned to 5 February 2016 to enable the prosecution to consider a plea offer made by the solicitors that were then representing you.
19 On 5 February 2016 you pleaded guilty to the two charges on the indictment and the matter was listed for a plea in this Court on 19 May 2016. There were funding issues, however, which led to this matter being adjourned to the hearing before me on 10 November 2016.
20 I accept that your plea of guilty indicates remorse for your offending.
21 There were no prior matters alleged against you. You, therefore, come to the Court as a person of otherwise good character.
22 For completeness and consistent with the submissions of the prosecution, I note you are not to be sentenced as a serious offender or a continuing criminal enterprise offender.
23 I also note s.54(d) (minimum non-parole) and (e) (baseline offences) County Court Criminal Division Practice Note PNCR1-2015 are not applicable when sentencing you.
24 You are, however, required to be registered pursuant to the Sex Offenders Registration Act 2004 (Vic) as offences under s.474.19(1) Criminal Code 1995 (Cth) and s.70(1) Crimes Act 1958 (Vic) are Class 2 offences under that Act and thus, are registrable offences. As you have been convicted of two Class 2 offences you are required to report for 15 years, such being mandatory. The prosecutor urged that such applied to you and I agree such does apply.
25 You appeared on your own behalf at the plea hearing, as I said was your right, and you addressed me on a number of matters, relevant not only to your offending but also to your background, and the document in which this material was contained was placed before me (Exhibit 5).
26 Regarding the prosecution opening at your plea hearing, you initially queried the earlier 2013 images. That was clarified with you by reference to the depositions before the Court. That clarification disclosed that whilst your offending in Charge 1 occurred between 27 October 2013 and 10 October 2015, the majority of downloaded images occurred between August and September 2015. Two earlier images (specifically videos) were downloaded in 2013. I accept your submission that at the time you were represented by solicitors you understood the date of the offending was to be between August and October 2015, and not include two videos in 2013. I accept that when the plea offer was made on 21 January 2016 you understood that to be the basis of your plea, and that the subsequent expansion of the dates alleged in Charge 1 occurred without your knowledge, albeit you now plead guilty to the extended dates. I therefore, as I say, accept your submission that the majority of the downloading between August to October 2015, the majority was between August to October 2015 with a significant gap in between that offending and that in 2013.
27 I discussed with you my concern that you revisited a number of these images/videos for a second time, and I also discussed with you, you being curious about this type of material, which meant you would look at it.
28 Turning to the submissions on your plea, I also accepted you were co-operative with the authorities when spoken to at your house. At your plea hearing, present in Court was your wife. You are 47 years of age at sentence.
29 Turning to the offending, you said you had previously been using a downloading software program called Vuze to search for mainstream movies, software and adult pornography material, and that in August 2015, when searching for adult material using Vuze, you came across a very large compressed file with an Asian file name. You said, without thinking, you clicked on the file to download it.
30 The prosecutor, Ms Lye, in response however, submitted that the material found on your computer and the downloading dates were not consistent with that submission, and I was referred to the depositions (pages 26-28). That material indicated, and as I understood it and you ultimately accepted, that there was download of child pornography prior to that date and you said you must have ‘forgotten about it’.
31
You said the “Asian” file had a large amount of child pornography on it which, although at the time you said you did not know how much was there, you assumed it must have been a lot given the size of the original file size of
2 gigabytes. You said you assumed there might have been hundreds of files, however, you conceded there was a lot more, consistent with the prosecution evidence.
32 You admitted you had viewed the files from the original download, and that some were disgusting to you, some less so. You said you struggled to understand why you downloaded and viewed the child pornography. You could not offer any reasons why you did not delete the entire folder structure. You stated you had never been interested in that type of material and in the past on the few times you had inadvertently downloaded such material, you said you had deleted it.
33 You admitted that over the next few weeks you downloaded a number of individual files which, from their titles, were clearly child pornography. You said you struggled to understand why you did that, as you did not receive any sexual gratification from looking at the material. You said there was work currently being undertaking by you with Dr Mathew Barth, Psychologist, in an attempt to have you understand why and how you committed this offending.
34 Regarding the two videos from the Apple MacBook Pro laptop computer in 2013, you did not remember downloading those and was not aware that they were there.
35 Not surprisingly, you said you were extremely upset with yourself for your actions and your offending. You struggled with guilt as a result of your offending, and the impact that it has had on your wife and daughter.
36 You said Dr Barth had explained to you this was not a victimless crime, and what really happens behind the scenes to and with these children. When you now think about this material you said you feel physically sick.
37 You said Dr Barth was helping you to work through factors that may have contributed to your offending, as well as giving you an appreciation of the real impact of child pornography on their victims. The counselling had also been directed to working on ways to ensure you did not fall into habits and lifestyle patterns that might lead to re-offending.
38 During those sessions you said you had been able to open up about a number of specific aspects of your life, which you had previously not been able to talk about with anyone. These were set out at points 1 to 9 in your handwritten submissions (Exhibit 5), which included the rape and murder of your mother, being moved from family to family around the country, and your father unable to cope with a young child. You described being isolated as a youth, as you constantly had to fend for yourself. You referred to being physically abused by one uncle and sexually abused by another. You also referred to years of feeling isolated within your marriage as a result of your wife giving all her attention to your daughter, and I shall return to your daughter, again later in these sentencing remarks.
39 You also referred to difficulties with intimacy between yourself and your wife and your feeling of being a failure after being made redundant, your business collapsing and becoming bankrupt, and the loss of the family home as a result, together with most of your superannuation. It was as a result of a number of factors, you said you effectively became a recluse and immersed yourself in the internet.
40 Prior to your business collapsing, you described yourself as outgoing, social and highly respected by friends, clients and work colleagues.
41 You said you did not have any criminal history and, of course, I am very much aware of that, nor is there anything subsequent or pending.
42 I also accept, consistent with your submissions, that apart from this offending you have led a life with a high regard for the law. You are a life member of the a local Cricket Club, had coached basketball and volunteered your services to the Homeless World Cup, providing all their photography and image management.
43 Since being charged with this offending, you have not been able to work with children or obtain a relevant permit. Basketball Victoria have banned you from all stadiums in Victoria, as is their policy as a result of your offending, and having received notice in relation to your Working with Children’s Permit. This meant you had to cease playing basketball immediately and were not allowed into stadiums, even as a spectator.
44 Not surprisingly, you said, there had been a lot of gossip about your offending and you had lost many friends over it. You told me that since this offending, you and your family had struggled financially. You accepted the computer equipment was to be forfeited, and you had consented to that, which is a further financial loss.
45 You are currently employed fulltime with Genesis Office Systems Pty Ltd (Genesis), and have been there since 1 July 2016. The directors of that company, you said, were made aware of these charges prior to you commencing work with them. You said you enjoyed the work and it provided a steady income. You previously had to turn down two jobs because of the travel restrictions that were imposed as part of the bail conditions for this offending.
46 You said you had been working on opening up more to your wife about your issues. You said you now realised there would likely be more benefits to you in spending more time with your wife and talking to your daughter rather than ignoring problems in the relationship/family. You wanted your marriage to work and you thought marriage counselling might assist. Dr Barth had recommended such once you had dealt with your own internal issues and you said you would continue to work with Dr Barth.
47 You said you were the main income earner, earning approximately $950 per week, excluding commissions. Your wife received approximately $100 per fortnight on a Carers Allowance for your daughter. Your wife had not worked since your daughter was 3 years of age, as she has an intellectual disability and required significant amount of attention. You do not have your own car, only that supplied by your employer.
48 You also said your wife had to deal with her own illnesses, including diabetes, and that she was on medication. Surgery may be required in the future in relation to a particular health issue, which you outlined in your submissions.
49 Turning to your daughter, she is 21 years of age and in a government-funded part-time assisted work program. She has struggled over the years to read, write and develop social skills. You had employed many additional programs to try and improve her education and also speech therapy. Her condition was such that you and your wife would most likely have to assist her for many years to come.
50 You said you had a number of expenses, including rent, a very large electricity bill which you are paying off, and other household expenses. You were concerned that if you were incarcerated your employer would not be able to hold your job and it would be difficult for you to find alternative employment upon your release from custody with a criminal record.
51 I accept if incarcerated that consistent with general sentencing principles, you will be worried about how your wife and daughter are coping without you, and that is a matter I can take into account in mitigation of your sentence (although not as family hardship, specifically exceptional circumstances), and in that regard I note a number of decisions of the Court of Appeal previously that have been stated referrable to hardship to family, over many years including Power & Ors[3], just to mention some old authorities, and the sentencing manual also refers to that. The point being there have been lots of authorities over many years about a need for exceptional circumstances and what does not qualify as exceptional circumstances and what does.
[3] 2 June 1987 CCA Vic
52 Before me was a report from Dr Mathew Barth, Psychologist, dated 8 November 2016. He confirmed you had voluntarily attended seven treatment sessions between 15 February 2016 and 1 July 2016. At that time you were unable to continue with treatment due to financial constraints.
53 Dr Barth referred to your participation in a Sex Offender Treatment Program (SOTP). That program had focused on assisting you gain an insight into your offending, enhancing victim empathy and developing a solid relapse prevention plan to reduce your risk of recidivism. You expressed your desire to utilise treatment as a means of addressing your offending behaviour and to avoid re-offending.
54 He said the initial phase of the SOTP had focused on assisting you gain insight into the underlying motivations for your offending behaviour, to assist you in understanding your emotional needs that underpin your offending and to assist you to develop improved coping skills to deal with these needs with more pro-social behaviours.
55 You described your offending as having occurred during a particularly stressful period in your life, which was elaborated upon within the report of Dr Barth (see paragraph 6). It began with you immersing yourself in internet-related activities, particularly downloading and viewing movies (mainstream) and pornography. As those activities became more regular you came across a wide range of material which culminated in accessing child pornography.
56
You had been a victim of sexual abuse by your uncle, however, according to
Dr Barth, the potential significance of that event in relation to your offending remained unclear.
57 Through exercises you were challenged to analyse your emotional needs which had motivated your offending behaviour at the time. You had found that very challenging.
58 Coping skills were introduced to increase your capacity to recognise feelings and communicate your emotional needs in an appropriate way with people close to you.
59 In the opinion of Dr Barth, given the limited duration of your treatment to date, you required further intervention to allow you to develop your ability to fulfil your emotional needs in a healthier manner.
60 You had commenced the process of gaining insight into your emotional needs which contributed to your offending behaviour and to implement healthier coping mechanisms. In the opinion of Dr Barth, however, there would need to be extended further treatment for you to achieve more comprehensive insight into your offending and to address your other issues more effectively in the long term. I digress and note further treatment as suggested will hopefully assist your rehabilitation prospects and reduce your risk of re-offending in this way.
61 The second phase of SOTP, he said, focused on victim empathy. You were educated on the noxious impact of all forms of sexual abuse child victims suffered and the destructive impact of child pornography. You were challenged to restructure your offence-supporting cognitions.
62 You expressed shame for your behaviour and have made good progress in that phase of treatment. Relapse prevention had been introduced in the earlier stages of your treatment and elaborated on as treatment progressed. Your relapse prevention plan included abstaining from all pornography, spending quality time with your wife and daughter and developing a healthier lifestyle. You agreed to abide by the Relapse Prevention Plan, however, in the opinion of Dr Barth, further intervention was warranted to enhance and consolidate your strategies.
63 In conclusion, Dr Barth stated you presented as a man who remained in the formative stages of gaining insight into your offending and instituting positive changes in your life. You had, on a positive note, corrected your offence-supporting cognitions and demonstrated a genuine empathy for the impact of your behaviour. You had also commenced the process of implementing a solid Relapse Prevention Plan.
64 On the other hand, you continued to present with interpersonal problems and your understanding of emotional and sexual factors which motivated your behaviour was limited. In the opinion of Dr Barth, you required long-term engagement in treatment if those issues were to be addressed in a comprehensive manner. He considered it essential that you complete a Specialist Sex Offender Program at the earliest opportunity. In addition, you required treatment to assist you in discussing the impact of your own experience of sexual abuse. You had expressed a willingness to continue with treatment in the future.
65 There were a number of documents placed before me referable to your daughter. I have read all of those and I discussed them with you during the course of your plea hearing. Before me were three reports from Cytogenetic Services, referable to you, your wife and daughter, a report from Helen O’Rourke, Speech Pathologist, referable to assessment in September 2000 regarding your daughter. There was also a Psychological Cognitive Assessment Report for your daughter, that assessment on 2 August 2004 prepared by Sanchia Whiteman, Psychologist. That testing of your daughter suggested she functioned in the moderately intellectually-disabled range.
66 There was also correspondence from Dr Sian Hughes, Consultant Paediatrician, dated 22 April 2005, again referable to your daughter, which outlined her intellectual difficulties in some detail. There was also a document from Lewis & Lewis, a psychological consultancy service, following assessment of your daughter on 20 December 2000, again referring to her intellectual disabilities and learning difficulties.
67 On the material before me, I accept your daughter has a number of issues which, no doubt, make it very difficult for her in the community and therefore she has, over many years, received a lot of additional assistance to help her cope. In that regard I note you and your wife, perhaps in particular your wife, had spent most of her life devoted to assisting her. No doubt a lot of time by you also. I discussed with you family hardship and the need for exceptional circumstances to be established for such to mitigate sentence. Unfortunately, however, your wife and daughter were not “top of your mind” when you committed these offences. While this material does not amount to exceptional circumstances, I accept you will, when in custody, be very concerned about how not only your wife, but your daughter, will be coping in your absence emotionally, financially and other ways. I have no doubt that will impact adversely upon you and will make your time in custody more difficult, knowing you will be unable to assist them greatly whilst in custody. Such is relevant, consistent with general sentencing principles, and I have taken that into account in mitigation of your sentence.
68
There was also correspondence from Campbellfield Medical Centre dated
14 May 2016, which outlined your wife’s health history and current medication.
69 There was a reference before me from John Mavrias, Managing Director of Genesis, dated 4 November 2016. He was aware you were before the Court on these charges and was totally surprised when told about your offending.
70
You had been contracting to Genesis on and off for almost four years, although Mr Mavrias had known you on a personal and professional level for nearly
20 years. Your offending, he said, was totally out of character. He described you as an honest, dedicated and reliable worker.
71 His company relied heavily on your knowledge of the industry and on their internal systems.
72 Mr Mavrias was aware you had gone through a very stressful time following being made redundant in 2011, and then the subsequent failure of your business in 2012/2013, and he referred to the adverse impact upon you of those matters, financially.
73 Mr Mavrias confirmed, and I accept as I have said, that your home life has been difficult as a result of your daughter’s disability and your wife’s various illnesses.
74 You were remorseful for this offending and he was aware you had been receiving regular counselling.
75 There was a reference from your wife dated 8 November 2016 and she was surprised to hear of this offending. I have no doubt she was also very disappointed. She described you as a dedicated husband and father, doing the best to provide for both she and your daughter and you were always helping people.
76 You had attempted to start your own business after you were retrenched, however that failed after 18 months, and that had impacted adversely on the family’s financial situation.
77 You had apologised to your family on numerous occasions for your offending and you felt guilty for what you had done.
78 Your wife referred to your daughter requiring constant attention due to her intellectual disability and also her own health problems. They were dependent on you financially.
79 You had been obtaining counselling to address your problems.
80 The prosecutor, Ms Lye, tendered written submissions on sentence (Exhibit B) and addressed those during the course of your plea hearing. You have been given a copy of her submissions prior to the plea hearing, although I appreciate you likely had some difficulty wading through it and understanding all of that material. In that regard, an opportunity was given to you between your plea hearing date and today's sentence to read this material and digest it if you wished, and to consider if you wanted to make any further submissions. In that regard, I also arranged for you to be given a copy of the decision of DPP (Cth) and DPP v Garside[4], as that case was discussed in some detail with portions of it being read into the transcript by me.
[4] [2016] VSCA 74
81 Ms Lye acknowledged you had pleaded guilty to both charges before me and that such was indicative of remorse and also had utilitarian benefit. As I say, I accept that is so. Your pleas of guilty have saved the Court time and cost of a trial, you have not required any witnesses to attend, either at any committal hearing or at trial, in particular, and see the authorities I have referred to earlier: Thomas and Kim & Fang (s.16A(2)(g)).
82 When sentencing you I am required to consider all matters set out in s.16A(1) and 16A(2) Crimes Act 1914 (Cth) relevant and known to the Court when sentencing you, as I am also required to take into account the Sentencing Act relevant to the State offence.
83 The prosecution submitted a number of factors were relevant when determining the appropriate sentence in your case.
84 The prosecutor referred to the intention of Parliament when enacting penalty increases in both the State and Federal Parliaments in the explanatory memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010.
85 The prosecutor submitted, and I accept, that the approach taken by both Parliament and the Courts indicates the severity with which child pornography offending is viewed. There can be no doubt that the courts regard such offending as serious and such has been stated in numerous cases over many years.
86 General deterrence must be of paramount consideration when sentencing an offender for child pornography offences (s.16A(2)(ja)), and this was recently confirmed recently in the decision of Garside (paragraphs 20 to 21).
87 I must assess the nature and circumstances of your offending. In that regard a number of features are relevant, such as the nature and content of the material. I was referred to the system used to classify this material and also referred to the decision of R v Porte[5] in that regard. The nature and content of material was also most recently discussed in Garside (see paragraphs 67 to 71).
[5] [2015] NSWCCA 174 [75] and [77]
88 As part of the plea hearing I viewed a number of samples of the pornography files, the subject of the charges. Despite classification of the material, in particular in Category 1, representing 40.6% of the total number of images and videos, without going into any great detail, there are some very disturbing images contained within the sample, including very young girls and infants. One showed touching by another of a young child.
89 Category 2 includes objects.
90 Category 3, comprising 38.4% of the total material, revealed varying degrees of what I shall call gravity and repugnant nature of the images. I do not propose to further describe the material, particularly categories 4 and 5. That disc which showed that material, will no doubt be available if needed.
91 In brief, some of the images included a baby, very young girls, a female girl tied up, gagged and posed, also an animal. In the sample provided to me there were varying degrees of gravity of the images in each category (Garside, paragraph 71). Ms Lye also made reference to the diversity of Category 1 images (Exhibit B, paragraphs 14 and 15) and she is correct.
92 Regarding the number of child pornography files, the prosecutor submitted it was towards the middle of the scale, with a total of 2,843 files. 2,843 is certainly not an insignificant number.
93 The prosecution conceded, and I accept, that you were not accessing or possessing this material for sale or distribution. I also accept there was no suggestion of any financial benefit to you as a result of your offending. That, of course, however, does not mitigate your offending.
94 The prosecution also referred to the number of children depicted, and thereby victimised in the material you possessed (R v Gent[6]). I agree there were, in all the images I saw, at least a significant number of children involved in the sample images and videos. Beyond those sampled there would no doubt be other children also victimised.
[6] (2005) 162 A Crim R 29
95 The prosecution accepts, and I am aware, that the bulk of the child pornography files were accessed between 4 August 2015 and 10 October 2015, with a gap prior to that to 27 October 2013.
96 The State offence referred to the volume of pornographic material in your possession on the date the search warrant was executed at your home.
97 In Garside (paragraph 25), the court referred to sentencing in joint State/Commonwealth offending, making reference, particularly, to cumulation on counts or charges involving both Commonwealth and State offending, which was also discussed. That is:
“(a) Unless exceptional circumstances exist the sentence involving an immediate term of imprisonment is ordinarily warranted, (see also paragraph [62].);
(b) the objective seriousness of the offending is to be determined by reference to the matters which I list below;
(c) general deterrence is the primary sentencing consideration;
(d) less or limited weight is to be given to an offender's prior good character"-
And I note not eliminated but less or limited weight -
"(e) offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography;
(f) offending involving child pornography is difficult to detect given the anonymity provided by the internet;
(g) the possession of child pornography material creates a market for the continued corruption and exploitation of children;
(h) there is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime. Children are sexually abused in order to supply the market; and
(i) the fact that an offender does not pay to access a child pornography website, or was not involved in the distribution or sale of child pornography does not mitigate the offending."
98 Taking those matters into account, and of particular relevance to you, as to the nature and gravity of the offence in considering this factor the following is relevant:
(1) the nature and content of the material including the age of the children and gravity of the sexual activity depicted;
(2) the number of images or items possessed, 2,843 files in total.
99 Your offending, the prosecution also urged, did not involve an isolated incident, rather a course of conduct over a period of two months, and included two video files back in 2013.
100 The prosecution also referred to these offences creating a market which involved corruption, violation and exploitation of children. While not necessarily identifiable, the children have, nevertheless been exploited, and also will have to live with the consequences of their images, perhaps permanently accessible in the child pornography trade.
101 The prosecutor referred to your remorse and stated it must demonstrate more than just regret at being caught, and that is so. I accept that you now recognise the wrongfulness of what you have done. I am concerned, however, you arguably minimised your downloading of this material by referring to the first such occasion when you downloaded an “Asian” site. It is clear that there was some accessing and downloading by you of material prior to that.
102 The prosecutor acknowledged, as do I, your plea of guilty at the earliest opportunity. It was, however, an overwhelming Crown case (R v Pajic[7]).
[7] [2009] 23 VR 527 [19]-[20]
103 Specific deterrence, the prosecution urged, is significant when sentencing you, as your offending was not an isolated incident and you attempted to minimise your offending, as I previously mentioned.
104 There is also the need to ensure you are adequately punished for your offending (s16A(2)(k)).
105 The prosecutor referred to Garside, in which the majority noted:
“What is clear from all the authorities is that access to child pornography is regarded as a very serious morally depraved conduct which is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending.”[8]
[8] [2016] VSCA 74, [62]
106 Addressing s.16A(2)(m), the prosecution conceded, and I am aware, that you are 47 years of age at time of sentence and you do not have any prior convictions. It follows therefore you have never previously been incarcerated. Regarding your prior good character, however, it is well established less weight should be attached to evidence of prior good character, as offences involving child pornography are frequently committed by persons of otherwise good character (see Garside, paragraph 63). It does not, as I have said, mean that good character is eliminated but, rather, is of less weight.
107 Turning to s.16A(2)(m), the prosecutor submitted a person who sought and was undergoing treatment with an intention to continue with treatment, was usually viewed by the courts as having greater prospects of rehabilitation. As I have noted previously, you have made efforts to undergo treatment, however, there is clearly more required, as stated by Dr Barth. It is important, however, as the prosecutor noted, an offender’s subjective circumstances do not overshadow the objective gravity of the crimes for which sentence is to be passed (R v Dodd[9]).
[9] (1991) 57 A Crim R 349, [354]
108 I regard your prospects of rehabilitation as good, as you have at least commenced counselling to address your offending. You have also, apart from this offending, not otherwise been involved with police, and have had a good employment history. I anticipate you will also not wish to put your family through this again. Hopefully they will be a protective factor for you.
109 Turning to s.16A(2)(p), the prosecution submitted that the high threshold of exceptional circumstances relevant to hardship to your family had not been met, and as I previously stated, I agree. However, that does not mean I am not able to take into account when sentencing you, consistent with general sentencing principles, and I do so, as I have previously stated.
110 Turning to the Sex Offenders Registration Act 2004, as I have said, you have pleaded guilty to these offences. You will be a registrable offender. Length of reporting period is 15 years, such being mandatory.
111 Turning to sentence, I am required to impose separate offences in respect of a Federal, Commonwealth if you like, and State offences, and I discussed that at some length with Ms Lye.
112 In Garside the Court also referred to cumulation between Commonwealth and State offending such as yours. The majority of the court referred to both as separate and distinct offences, acknowledging, however, that the one offence was linked to, and substantially overlapped, with the other, of which I am also aware.
113 The majority cited Porte (see Garside, paragraph 65), and concluded:
“The Commonwealth offence" -
that is Charge 1 in your case -
"is designed to address the use of the internet as a medium through which to carry out such offending on a potentially large scale. It carries with it a greater maximum penalty than the State offence" -
that is Charge 2 -
"reflecting its relative seriousness. The very recent decision in Watson[10], illustrates that one would ordinarily expect cumulation, and depending upon the circumstances, substantial cumulation of the Commonwealth offence or offences.” [66]
[10] [2016] VSCA 73
114 You urged a sentence that would not involve immediate incarceration and I, of course, considered that. In my opinion, however, to impose such a sentence would not adequately reflect all relevant sentencing considerations in this case, including all matters in mitigation of sentence and personal to you. The only appropriate disposition, in my opinion, consistent with the submission made by the prosecutor, involves a term of imprisonment.
115 I think I said to you when we were here last time, because this is a combination of a Commonwealth and State sentence, it is complicated. So it is a case of getting the wording right. I want you to understand that I have determined the appropriate sentence, but what will occur here, as it does in every case where there is combination Commonwealth and State sentences, because it has got to be the right wording, I will be discussing with the prosecutor, who represents the Commonwealth, to make sure that the sentence imposed accords with the law. That is the only discussion we will have. We are not horse trading about figures. I make the decision, the prosecutor is the one who is going to assist me to ensure that the record of the court is accurate. So I do not want you to be concerned that I am negotiating a sentence with the prosecutor. I am not, all right. So just be aware of that. So I sentence you as follows and a copy is coming over to the prosecutor now purely for this purpose. So this is it.
116 On Charge 1 (Commonwealth) - you had better give him a copy as well - you are convicted and sentenced to 2 years’ imprisonment.
117 On Charge 2 (State), you are convicted and sentenced to 7 months’ imprisonment, and I direct that 4 months of that 7 months be served cumulatively upon Charge 1.
118 The State sentence should start today, being 21 November 2016, and the Commonwealth sentence would then commence 4 months after the commencement of the State sentence, and I am going to get the prosecutor to make sure that is right. Yes, I know it is complicated.
119 That results in a total effective sentence of 2 years and 4 months’ imprisonment and I direct that you serve 12 months of that term of imprisonment, and thereafter you will be released on what is called a Recognisance Release Order in the sum of $1,000 for a period of 2 years, with a condition of that order that you participate in the Sex Offender Program.
120 I will come back to all of that in a minute and tell you a little bit about that order. It is two years on Charge 1. The State offence is 7 months and 4 months of that 7 months, Mr Brown, is cumulated upon Charge 1. So that means it is a total of 2 years and 4 months' imprisonment but after 12 months you will be released on a recognisance release order. So the prosecutor just has to provide the relevant paperwork to make sure that is correct. It is confusing. The start date is today for the State offence, and the Commonwealth is four months further in. That is the way it is worded.
121 While the prosecutor is doing that I should explain to you that you do not have to pay the $1000 on a recognisance release order unless you breach the order. So if you commit another offence it does not have to be child pornography, but any other offence, you can be brought back before me, and if you breach this order, in other words, what you do is you do your 12 months, then you are in the community for the rest of your sentence. If you breach that sentence you are back before me. You will be charged for that other offending and I have to re-sentence you for this offending and you lose your $1000. I do not expect I am going to see you again but I have to explain that to you in, as they say, words that you are likely to understand. Do not be offended. I have to use words that you are likely to understand. So you do your 12 months, you get out. The recognisance needs to be for a period of two years. So for two years after you get out you have got to be on your best behaviour. It is effectively a good behaviour bond type thing. So if you do not do anything wrong you do not have to worry about the remaining time that you would owe me, which is one year and four months, see. Two years and four, less 12 you do one year and four. All right. If you do get into trouble, if you do the wrong thing, you are charged for that offence, I see you get sentenced for that offence, then you come back before me and I have to re-sentence you, and it is likely you would go back to gaol again. You have just got to be very careful about that. Plus you can also - so you do not pay out the 1000 unless you breach the order.
122 You can also be fined. You have to do as directed by the Office of Corrections or as you are directed to attend at do. They will only ask reasonable things. You have got to do it. You can be fined if you breach the order, all right, but I will - as well, but these are things that happen if you do not comply with that recognisance release order. Yes, that two years when you are out. So you have just got to be extra careful you do not do anything wrong. An instructions you are given you have got to follow. You must go on the Sex Offender Program, either in custody or out, but you just do the program. If you do not you breach the order, back before me, re-sentence.
123 Madam Prosecutor, is that right?
124 MS LYE: Just in relation to the recognisance release order, Your Honour, just confirming that release is just purely on the Commonwealth.
125 HER HONOUR: That is correct.
126 MS LYE: That is correct, so one cannot cover both State and - - -
127 HER HONOUR: No.
128 MS LYE: Yes.
129 HER HONOUR: It is the Commonwealth offence.
130 MS LYE: Otherwise it is perfect.
131 HER HONOUR: Excellent. That is good to hear. And you have included on there the Sex Offender Program?
132 MS LYE: That is a paragraph on this form I can hand up so Your Honour can just include the wording in the order.
133 HER HONOUR: Why can you not write it out?
134 MS LYE: It is a form that is typed out so I can write it out but it is typed up.
135 HER HONOUR: Write it out.
136 MS LYE: Yes.
137 HER HONOUR: Mr Brown, while that is happening I can understand you may not want to take that document with you back into the prison, so what will happen is we will take it back from you. Unless you say, yes, I want to keep it, that is fine, but everything I have said today will be transcribed. It is typed out by someone and within a week or so, I cannot tell how quick they will be, but they are fairly quick, within about a week or so everything I have said in these sentencing remarks will be available in a transcript. So what I would suggest that you do, it is up to you entirely, is you can either read it yourself and, if you want to you have got options of appealing it, you can do it yourself or you can involve that solicitor again, maybe talk to her or him after this, they will get a copy as well, and they can contact my associate if they want a copy of it, all right? So it will be then up to you.
138 MS LYE: There are quite a few different conditions, Your Honour, when there are sex offences.
139 HER HONOUR: Read them out, sit down.
140 MS LYE: Yes.
141 HER HONOUR: Read them out loudly so Mr Brown can hear.
142 MS LYE: So that the defendant is to be under the supervision of the Deputy Commissioner of Community Correction Services, and sex offender management of his or her normally for two years.
143 HER HONOUR: Yes, that is right. In.
144 MS LYE: And that the defendant is to attend for assessment, and if assessed as suitable, treatment for Sex Offender Programs or program to reduce re-offending as directed by the Deputy Commissioner of Community Correction Services.
145 HER HONOUR: Tick in.
146 MS LYE: That the defendant is to report to the Community Corrections Centre that is closest to his house by 4 pm within two business days of his release.
147 HER HONOUR: So within two business days of getting out of custody, and we will come to that in a minute, you have to report - what is your nearest - what is your suburb again? Roxburgh Park, was it not? What would be the nearest Corrections? Where is Roxburgh - - -
148 UNIDENTIFIED SPEAKER: Broadmeadows.
149 HER HONOUR: There you go. Broadmeadows will have one.
150 MS LYE: Yes. So Broadmeadows.
151 HER HONOUR: Yes, Corrections.
152 MS LYE: Within two business days of his release.
153 HER HONOUR: Tick, yes, in.
154 MS LYE: That the defendant is to report to, and receive, visits from a Community Corrections officer or officers.
155 HER HONOUR: Yes, tick, in.
156 MS LYE: And that the defendant is to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.
157 HER HONOUR: Yes, if you move address or - when you get out if you move address or change jobs you have got to let them know within two days. They will not stop you but they just need to know. Tick, in.
158 MS LYE: That the defendant is not to leave Victoria except with the permission of an officer of the specified Community Corrections Centre.
159 HER HONOUR: Yes, in. You cannot go on holidays interstate or anything interstate. You have got to tell them first within two days. They will not say no. I would be very surprised if they did but you have to tell them.
160 MS LYE: And the defendant is to obey all lawful instructions and directions of Community Corrections officers.
161 HER HONOUR: Yes.
162 MS LYE: And that is it, Your Honour.
163 HER HONOUR: That sounds very similar to a CCO.
164 MS LYE: Yes, it is quite similar, an RO.
165 HER HONOUR: It is an RO, but that is still definitely an RO?
166 MS LYE: Definitely. This is the form we hand up.
167 HER HONOUR: Recognisance release order, RRO.
168 MS LYE: That is correct, under s.21B.
169 HER HONOUR: Yes, all right. So that is the Commonwealth, yes, all right. All those are conditions. Did you hear all of those? You have got to - yes. So the real thing is two days after release, make sure - working days, not on a Saturday or Sunday, but get there ASAP, otherwise you will potentially breach the order, you are back before me, I have got a problem then you see with the sentence. We might have to - yes, just - now we will come back to that in a minute. Have I explained everything that I am obliged to explain, Madam Prosecutor, as far as recognisance release order? I have explained about the breach, the money not up front?
170 MS LYE: Yes, Your Honour, yes.
171 HER HONOUR: Yes, all right. Is that in words that are likely to be understood. Are you satisfied I have met the test?
172 MS LYE: Yes, I am satisfied. That is the form.
173 HER HONOUR: It is all completed, is it?
174 MS LYE: Yes.
175 HER HONOUR: Let us have a look at it and then we will show it to Mr Brown. All right, so you are released after 12 months and the recognisance is $1000, good behaviour of two years from release date, under the supervision of the Deputy Commissioner Corrections for two years, yes. Attend for assessment, report at Broadmeadows within two working days, report to and receive visits from Corrections, all right. Remember, as I have said, if you do not comply with these conditions or breach them you could also be fined as well as breached so, yes. Two years' imprisonment (indistinct) 12 months. So you are only referring there to the Commonwealth sentence; correct?
176 MS LYE: That is correct, Your Honour.
177
HER HONOUR: Ms Jackson, 21 November 16. All right, what is happening now, just so that you know, Mr Brown, I realise it is probably a lot of shell shock and you may not be taking it all in, but basically Ms Jackson, my associate, is going to come down the back to you and give you some paperwork. One is this document here, which I am holding up. That sets out the conditions that I have just been explaining to you, and on p.2 down here, "I, Michael Leslie Brown:
(a) have had explained to me the purpose and effect of the order and the consequences that may follow if I fail without reasonable excuse to comply with the conditions, and that the order may be discharged or varied". So you can make application later to do that. Agree that you are bound, in accordance with the order, and that you have been given a copy of the order, which will then happen.
178
So first things first, you are going to be asked to sign p.2. The second thing is you heard me perhaps say that you are now on the Sex Offenders Registration Act. That is mandatory. It is mandatory. It is for 15 years, and it will be for
15 years. Ms Jackson has to give you some paperwork that tells you a bit about that Act or Parliament. You are not being asked whether you want to be on the register. I have made that decision. She is merely handing you the paperwork that she has to give you. If you do not want to sign it, that is fine but you will be asked if you will sign, acknowledging receipt of the paperwork. That is all you are being asked to acknowledge. So that takes care of that. Then we will come back to 6AAA and all the rest of it. I have not got there yet. So where we are at, at the moment is - I might continue on before that happens.
179 MS LYE: Just, Your Honour.
180 HER HONOUR: Yes.
181 MS LYE: Just for the abundance of caution, just because I know how Corrections Victoria works, because it sees there, that is just purely for the Commonwealth sentence, if it sees release after serving 12 months, that means that there is 12 months not including this four months where he is going to be serving.
182 HER HONOUR: I do not understand a word of that. Do you want to change this or what?
183 MS LYE: I think Your Honour should include an extra line just because - - -
184 HER HONOUR: You put it on and I will read it.
185 MS LYE: Yes, all right.
186 HER HONOUR: What is the extra line going to be?
187 MS LYE: Jut to specify that just for the Commonwealth offending he is only serving eight months, because his total effective - - -
188 HER HONOUR: Is 12.
189 MS LYE: Is 12.
190 HER HONOUR: Which is eight plus four.
191 MS LYE: Yes, eight plus four. So just in case, Your Honour.
192 HER HONOUR: Well, put that on there, make it clear.
193 MS LYE: Yes.
194 HER HONOUR: Make it right. See, Mr Brown, that is the trouble when it is Commonwealth and State sentences. It is always an issue.
195 MS LYE: I am just going to specify the date, Your Honour, on the order as well, four months from today, just - - -
196 HER HONOUR: Sure. Yes, make it abundantly clear.
197 MS LYE: For the abundance of caution.
198 HER HONOUR: Simple is best. And I keep saying it. Is the Commonwealth going to come into line with the State in the future one day in the fullness of time.
199 MS LYE: I would hope so, Your Honour.
200 HER HONOUR: No, I did not think so.
201 MS LYE: In the meantime, Your Honour, the s.6AAA statement.
202 HER HONOUR: I have not got there yet.
203 MS LYE: All right, that is all right. Yes, Your Honour. So just for the Commonwealth - - -
204 HER HONOUR: I will have a look at it.
205 MS LYE: - - - I have changed - I have amended it to eight months, so the State sentence on your order should mention that starting today, going for the period of seven months, et cetera.
206 HER HONOUR: Eight?
207 MS LYE: Seven months for the State.
208 HER HONOUR: Seven months, sorry, seven months, yes.
209 MS LYE: Yes, Your Honour.
210 HER HONOUR: All right, within two clear working days, eight months, because of the four on top.
211 MS LYE: Yes.
212 HER HONOUR: So that is eight plus four.
213 MS LYE: Yes.
214 HER HONOUR: Yes, all right. Before Ms Jackson heads down I need to continue on. I turn to s.6AAA Sentencing Act. What that means is had you pleaded not guilty to these two charges, as you know, I have sentenced you to a term of imprisonment after your plea of guilty to 2 years and 4 months with the 12 months to be served before you are on the recognisance release order.
215 Had you pleaded not guilty instead of guilty to these two charges I would have sentenced you to 4 years' gaol and imposed a non-parole period of 2 years and 6 months. That does not apply but I have to state it, aright.
216 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 11 days in custody by way of pre-sentence detention (up to and including yesterday, which is 20 November 2016). It does not include the day of sentence, which is today. I direct that it be entered into the records of the Court that you have spent 11 days in custody and that comes off the 12 months. In other words, you have already done 11 days of the 12 months. So I direct that that be entered into the records of court.
217 Were there any other orders sought?
218 MS LYE: None, Your Honour.
219 HER HONOUR: All right, no s.464?
220 MS LYE: No.
221 HER HONOUR: No, all right. All right, well, now Ms Jackson is going to come down the back and if you have any questions just call them out to me, if you do not understand any of it, and bring that other piece of paper, Ms Jackson, unless Mr Brown says he wants to take it with him, but I can understand it if he does not.
222 Ms Jackson, do you want to keep that other sheet? No, it is probably best but it is all on transcript, you will have access to it within about a week or you can ask your solicitor to ring Ms Jackson and she will sort it out once I have revised it, all right. All right, is there anything else? Anything unclear about all of that? No, all right. Well, thank you very much. Anything, Ms Lye, anything further?
223 MS LYE: No, Your Honour.
224 HER HONOUR: No, all right. Thank you, Mr Brown, if you could go out.
225 ACCUSED: Thank you, Your Honour.
226 HER HONOUR: Documents will be coming very soon. Thank you. Yes, thank you.
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