Director of Public Prosecutions (Cth) v Dennis
[2016] VCC 1775
•16 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01892
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN DENNIS |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April, 21 June, 16 August and 9 November 2016 | |
DATE OF SENTENCE: | 16 November 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v Dennis | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1775 | |
REASONS FOR SENTENCE
---
Subject: Criminal law-sentencing – access child pornography material using a carriage service – failed to comply with Sex Offender Registration Act 2004 (Vic) reporting requirements – possess child pornography – immediate custodial sentence imposed.
--
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr J. Robins | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Anderson | Victoria Legal Aid |
HER HONOUR:
1 Stephen Dennis you have pleaded guilty three charges on indictment.
2 Charge 1 relates to accessing child pornography material between 15 April 2010 and 10 December 2014.
3 Charge 2 is in respect to you failure to comply with reporting obligations under the Sex Offenders Registration Act 2004, between the dates of 20 August 2014 and 10 December 2014.
4 Charge 3 relates to you knowingly being in possession of child pornography material on 10 December 2014.
Maximum penalty
5 Each of the offences are serious and that is reflected in the maximum penalties prescribed by Parliament as follows:
6 In respect to using a carriage service to access child pornography, the maximum penalty imposed, pursuant to the Criminal Code (Cth) is 15 years' imprisonment. That maximum penalty was increased by Parliament in 2010 to reflect Parliament's intention that child pornography offending warrants substantial penalties in order to give effect to general deterrence.
7 In respect to your reporting requirements under the Sex Offender Registration Act 2004 (Vic), which I will refer to as "SORA", the maximum penalty is five years' imprisonment.
8 In respect to being knowingly in possession of child pornography, that is a State offence and the maximum, at the time of the offending, was five years' imprisonment.
9 I shall now proceed to sentence you in accordance with the prosecution summary, that was set out in the opening that was tendered at the plea hearing.
10 You have also admitted your prior criminal history and there are court attendances in NSW, Tasmania and Victoria and they span a period from about 1993 to 2009. Of significance, there are relevant convictions for sexual offending, including the possession of pornography.
11 On 25 June 1993 at Wollongong District Court, you were indicted for aggravated sexual assault. The sentence was deferred upon you entering a good behaviour bond for three years, to be subject to the supervision of the New South Wales Probation Service.
12 In Tasmania, convictions were recorded as follows. On 8 August 2003, at Hobart Court of Petty Sessions, you pleaded guilty and convictions were recorded for four charges of possess child abuse product; two charges of reproduce a child abuse product; making a child abuse product; and multiple charges of dishonestly acquiring financial advantage; uttering, forgery and contravene conditions of a notice, for which you received a nine months’ warrant of commitment, that is, a sentence of imprisonment, partially suspended for three months on condition for two years that you be of good behaviour and commit no similar offending for a period of two years from your release from prison. Probation was to take effect upon your release from prison for two years with conditions you attend educational and other programs, as directed by the court or probation officer.
13 At Launceston Court of Petty Sessions on 1 March 2004, you pleaded guilty to failing to comply with conditions of a probation order and a conviction was recorded. The court dealt with the breach of a suspended sentence. Three months’ warrant was imposed. A suspended sentence was ordered to be served cumulatively, with a term of imprisonment of eight months’ that was imposed for a charge of expose a person.
14 At Hobart Court of Petty Sessions on 15 March 2005, you pleaded guilty to various burglary charges; stealing; attempted burglary; unlawful possession of property; breach of bail conditions; and two charges of possess child abuse product, for which you received a global sentence of two years’ imprisonment, commencing 16 January 2005.
15
In Victoria there are two court appearances on 10 December 2009 and
26 November 2009, and they were both for Heidelberg Magistrates' Court, in respect to Commonwealth offences of obtaining financial advantage of a Commonwealth entity. It appears that a sentence was imposed of three months to be served by way of an intensive corrections order of three months and you were ordered to pay compensation.
16 Tracey Allen, the author of The Specialised Offender and Assessment Treatment Service Pre-Sentence Clinical Assessment Report, details information from you concerning your prior sexual offending. That information was not challenged. The matter for which you were dealt with in 1993 in New South Wales related to an occasion when you agreed to engage in consensual sexual activity with a young male, aged 18, whom you had met at a hotel, but then the male victim changed his mind and wanted to cease sexual activity. You persisted and there was a sexual assault and physical assault. It was noted you were 21 at that time.
17 The 2003 Tasmanian convictions relate to possess child abuse product, reproduce child abuse product, and make child abuse product, occurring between mid-2000 and early-2003. You accessed the material online at a library and would save images to a disc or email them to yourself to save them onto your hard drive at home and that involved images of naked males aged seven to 80 years of age.
18 In 2004 the Tasmanian conviction relating to exposing person happened in circumstances where you had befriended a couple through a religious group. You joined them and their nine to ten year old male child on an outing to the beach. You were left to care for that male child whilst his parents went for a swim. You stepped away to urinate and the victim followed you. On seeing your penis, he started to cry and he subsequently informed his parents. You pleaded not guilty, but you were subsequently found guilty of exposing your person. That meant that you had breached the conditions of your probation and suspended sentence.
19 In 2005 in Tasmania, you were convicted on two charges of possession of child abuse product, relating to you accessing and managing material that was similar to the earlier offending in 2000 to 2003.
20 This court does not know precisely the nature of the child pornography material that has been referred to with respect to the earlier offending and it was noted that some of the offending was dealt with in the context of consolidated plea hearings, so that has been taken into account.
21 It is important to note that you have never received any treatment in respect to your prior sexual offending in the past. The current offending does not involve contact sexual offences, but does appear to represent an escalation in your offending concerning accessing child pornography and possession of child pornography.
Circumstances of the offending - Child pornography offences (Charges 1 and 3)
22 Briefly I will refer to the circumstances of the offending.
23 Following identification of you online by police investigations,[1] a search warrant was executed at your home on 10 December 2014.
[1] Statement of MCKAY, page 64 BOE
24 Both you and your partner, Mr Wei Li, were present.[2]
[2] Statement of MCKAY, page 64 BOE
25 During that search, numerous electronic items,[3] and also manila folders, were seized that contained child pornography material.[4]
[3] Including hard disc drives, a PC tower, USB storage devices, a digital camera, and laptop computers
[4] Statement of RICHARDS, page 51 BOE;
26 The material was later categorised in accordance with the Australian National Victim Identification Library (ANVIL)[5] classifications as contained in the following table.
[5] Level 1 – Depictions of children with no sexual activity;
Category Images Videos Level 1 891 11 Level 2 266 70 Level 3 35 11 Level 4 213 124 Level 5 0 1 Level 6 5 0 TOTAL 1,410 217
27 The videos ranged in length up to approximately 35 minutes.[6] The one Level 5 video depicted an adult male anally penetrating a boy of approximately six years, whilst he was unconscious.
[6] A category 4 video located on Exhibit 6.
28 The majority of the children in the material were of a pre-pubescent age, with some younger children, including toddlers also being depicted.
29 Also seized were five manila folders containing written text of sex involving children.[7] Further, two plastic folders containing printed pictures containing child pornography were seized.[8]
[7] See Exhibit 8
[8] See Exhibit 13
30 Following the execution of the search warrant, both you and Li were arrested and escorted to Werribee Police Station.[9] Li was subsequently released without charge.[10]
[9] Statement of BALDWIN, p 59 BOE; statement of MCKAY, p 65 BOE
[10] Statement of RICHARDS, p 53/54 BOE
31 In your record of interview, you made admissions and you acknowledged that:
(a) During the execution of the search warrant, police located child pornography, and there were video clips, pictures and stories;[11]
[11] ROI Q20, p 166 BOE
(b) Most of the child pornography material was stored on hard drives and CDs, some was stored on phones, memory sticks and a laptop computer;[12]
[12] ROI Q 21-23, p 166/167 BOE
(c) Child pornography means naked children under a certain age;[13]
[13] ROI Q 24, p 167
(d) You obtained the material from various websites and emails over approximately five years;[14]
[14] ROI Q 28-32, p 167
(e) You acknowledged that during the search warrant, police observed your computer displaying two young males lying on a bed and one was naked. You had been viewing the material approximately one hour before the search warrant was executed;[15]
[15] ROI Q65 p 171, Q 84 p173
(f) You had a folder containing a story that you had printed out from
a website. The majority of the stories that you had were about children: "Children on children", "Children with older people" or "First time";[16]
[16] ROI Q 107-111, pp175/176
(g) You had two folders containing numerous printed out photos of young children in naked positions;[17]
[17] ROI Q 120, p177
(h) When asked why you accessed child pornography, you stated "I don’t know. I can’t explain it. Just something in my head thinks it’s good. When I saw it, I think it looks good.[18] The violent images doesn’t do anything, but when it’s just a naked male, I get a good feeling inside of me";[19]
[18] ROI Q182/183, p184
[19] ROI Q 186-190, p184
(i) You acknowledged that you knew the legal implications of owning child pornography were "really bad" and that you can get up to a long prison sentence;[20]
[20] ROI Q 200, pp185/186
(j) You tried not to download child pornography before.[21] But you told police it's just like smoking to you, you cannot give it up;[22]
[21] ROI Q 204, p186
[22] ROI Q 204-207, p186
(k) You said that it is not a sexual addiction, it is just addiction that makes you feel good inside and you cannot explain why it makes you feel good inside;[23]
(l) You did not think that you could stop accessing child pornography without support.[24]
[23] ROI Q 209, p186
[24] ROI Q 268, p 193
32 The total number of files accessed is referred to in the following table:
Category Images Videos Level 1 867 11 Level 2 257 70 Level 3 34 11 Level 4 207 124 Level 5 0 1 Level 6 5 0 TOTAL 1,370 217
Charge 2 - failure to comply with SORA reporting requirements
33 Because of your prior convictions for sexual offences in Tasmania, you are a registrable sexual offender under the Sex Offenders Registration Act 2004 (Vic)[25] and are required to report for life.[26]
[25] Sex Offenders Registration Act 2004 (Vic), Schedule 2, item 30: Any offence under a law of a foreign jurisdiction that, if it had been committed in Victoria, would have constituted an offence of a kind listed in Schedule 2, including possession of child pornography at item 18.
[26]Sex Offenders Registration Act 2004 (Vic), section 34(1)(ia)(iii)
34 You failed to comply with your reporting obligations in that you:
(a) failed to report your employment with your business "Green Clippings";
(b) did not report various email addresses;[27]
(c) did not report your use of Facebook or other social network sites.
[27] BOE p160; ROI Q224, p 188
35 The context to this offending was that the Tasmanian Sex Offenders Registry did not exist when you first entered Victoria and you were not a registrable offender in Tasmania at that time.[28] You therefore would not have been aware of any obligation to contact the Victorian Registry to advise that you were now living in Victoria. However, you applied for a Working with Children Check on 23 June 2014. You were working at Stott's College as a cleaner. As a consequence of that application, it was referred to the Victorian Sex Offenders Registry to ensure that you were not on the register as a registered offender.
[28]Community Protection (Offender Reporting) Act 2005 (Tas) commenced on 15 December 2005
36 Given your prior criminal history from Tasmania, that meant s.54 of the Sex Offenders Registration Act 2004 (Vic) (“SORA”) was then employed to place you on the Victorian Register on 20 August 2014. On that the date, you were served with the relevant notice at Stott’s College. You signed a notice acknowledging notification of your reporting obligations and the reporting period.
37 Following your arrest on 10 December 2014, police became aware of your business, “Green Clippings”, the various email addresses and the fact that you used your Facebook and/or other social network sites. Therefore, Charge 2, failing to comply with your reporting obligations without reasonable excuse, contrary to the requirements of the SORA between 20 August 2014, the date you were served with the s.54 notice, and 10 December 2014, the date of your arrest was laid.
38 It is not in dispute you received the relevant notice when you were served at your then place of employment on 20 August 2014.
39 In the record of interview, you told police:
(a) you had about 12 email addresses, but did not tell the registry because you only used them for job searching "and stuff like that". You knew that you had to notify sex offenders registry of every one of your email addresses;[29]
[29] ROI Q 223-228, p 188
(b) you told them used Facebook, and had probably less than a thousand friends, but did not notify the sex offenders registry. You did not notify the registry about "quite a few things", because you did not want them to have too much information about what you were doing online, including illegal things;[30]
[30] ROI Q231-244, pp 189/190
(c) you told police “Green Clippings” was a company that said you were going to try and get up off the ground, and you told police you have two customers.[31] You did not notify the sex offenders registry about that because you didn’t think that was important, because it was only a
one-off, or maybe a bit more than a one-off.[32]
[31] ROI Q 259/264, p 192
[32] ROI Q 265, p 193
Objective seriousness
40 Because of your documented neuropsychological condition, to which I shall refer to shortly, as set out in the report of Martin Jackson, neuropsychologist, dated 9 August 2016, I am satisfied that this was not a flagrant abuse of the reporting obligations, rather that it reflects your particular circumstances.
41 Concerning Charges 1 and 3, your offending is objectively very serious:
(a) You accessed the child pornography material (CPM) frequently over a period of four years eight months. That is a lengthy course of conduct and is not an isolated act.
(b) Upon your arrest, you possessed a significant number of images depicting children of pre-pubescent age, with some younger children, including toddlers. Classification of the images by reference to ANVIL has already been set out. Although it is not possible to precisely know how many children were depicted across all the materials, it is evident that a significant number of children are involved and thereby victimised. I note that you fall to be sentenced in respect to possession of child pornography for only one day, being 10 December 2014.
(c) There is no evidence that you paid for the images. However, your counsel, Mr Anderson, acknowledged the fact that there is a market for child pornography encourages its production, whether paid for or not. You now acknowledge and understand that the dissemination and use of the material further serves to traumatise victims.
Mr Dennis, every case of possession or accessing child pornography has a victim, and in this case, there were multiple victims. You now understand that you have contributed directly to the abuse of those depicted in those images. Those victims cannot be identified personally, but in addition to the abuse they suffered whilst the material was being created, they suffer further abuse each time the material is downloaded, viewed and disseminated.
(d) I accept that there is no indication that the images were in your possession for the purposes of sale or further distribution by you. Nor is there any evidence that you profited from the offending.
(e) I further find that there was no appreciable risk of the material being seen or acquired by vulnerable persons, namely children.
(f) There is no indication that you were “proximate” to those responsible for bringing the material into existence. Nevertheless, if you and others who are tempted to access or possess this type of material did not do so, there would be no market for this reprehensible material.
Representative sample
42 I did view a representative sample of the child pornography material that was tendered to the court for viewing and agree with the various classifications.
General deterrence
43 General deterrence is of paramount consideration in sentencing for these types of offences because of the significant interest in protecting children from sexual abuse. It is now a sentencing factor that I am required to have regard to, pursuant to s.16A(2)(ja) Crimes Act 1914 (Cth). Specific deterrence is also of significance.
44
In formulating the appropriate sentence, I have had regard to the sentencing principles set out in both the Commonwealth and State legislation, and I have been guided further by the expression of principles, enunciated in
DPP (Cth) and DPP v Garside[2016] VSCA 74 and the other cases referred to.
45 I must impose a sentence that will both deter you and others in the community from committing similar offending in the future and the court must impose punishment and denounce your conduct on behalf of the community.
History of proceedings
46 You were charged and remanded in custody following your arrest on the 10 December 2014.
47 You were released on bail on 10 March 2015.
48 You were committed on 29 October 2015. At that time, the matter proceeded by way of straight hand-up brief and you entered a plea of guilty to the charges on the indictment.
49 You were re-remanded on the 26 April 2016, following the plea hearing and have remained in custody since.
Serious sexual offender
50 You are to be sentenced as a serious sexual offender in respect to Charge 3, owing to previous convictions for which you served a period of imprisonment.[33]
[33] See Sentencing Act 1991 (Vic), section 6B(2). The offender’s prior sexual offending in Tasmania satisfies the definition of ‘sexual offence’ (see Schedule 1, item (1)(g) of the Sentencing Act 1991 (Vic)). It is submitted that the Tasmanian offences of possessing child abuse would satisfy the elements of section 70(1) of the Crimes Act 1958 (Vic).
51 Protection of the community from you is the principle purpose for which the sentence is to be imposed (s. 6D(a) Sentencing Act 1991).
52 In this instance, the Crown do not seek a sentence that is longer than that which is proportionate to the gravity of the offending.
53 Section 6E provides sentences are to be served cumulatively, unless otherwise directed by the court, and I will be doing that in this case.
Family background/Education/Employment
54 I turn now to your background. You are now 45.
55 You have limited formal education. You completed Year 8 level at Lake Illawarra High School. At school, you struggled academically and socially. You are a man who identifies as being homosexual. You were bullied at school and ostracised because of your sexuality. You were assessed as having some learning difficulties at around age 16. At that time you suffered a brain injury as a consequence of a motorcycle accident.
56 Following school you did numerous TAFE courses, including a bar course and Certificate II in warehouse logistics. There has been employment throughout your adult life, where you have worked in sales as a cleaner or a gardener.
57 You are the second youngest of five children, two males and three females. Tragically, your sister, Colleen died at age 47. You were very close to her and following her death in 2010, you have suffered significant grief.
58 Your childhood has been described as happy, albeit you were bullied at school for being gay.
59 Your father passed approximately three years ago and your mother is aged 68. She lives in New South Wales and you have some contact with her via telephone.
60 The most recent employment you had was for five years, working as a cleaner at Stott’s College. As I indicated earlier, that employment ceased once you were placed on the Sex Offenders Register in August 2010. Students at Stott’s College were predominantly adult, but they do also have students ranging from aged 15 years onwards.
61 You have not worked since leaving Stott’s and received NewStart allowance whilst on bail. You were living with your former partner, Wei Li, in a suburb near Werribee until your remand.
62 Mr Li was previously in an intimate relationship with you of some six years duration, but that relationship ceased following the laying of the charges. Mr Li is a man who has no criminal history and is gainfully employed in the IT industry. He remains supportive of you and has been present during all the plea hearings.
63 Your consumption of child pornography remained a secret from Mr Li. He ended the intimate relationship with you as a direct consequence of your offending coming to light. Nevertheless, he is strongly supportive of you.
64 The breakdown of your relationship with him has been akin, in terms of the quantum of grief, to the death of your sister, Colleen.
Drugs and alcohol and general health
65 There is no history of illicit drug use or alcohol issues. You have a history of high blood pressure and high cholesterol. You have been diagnosed with testicular cancer, for which you had some operative treatment in October 2015. A neuropsychological report confirms you have a past history of four significant head injuries. There are no other medical issues that have been highlighted.
Psychological state
66 I have had regard to the report provided by Mr Cummins, forensic psychologist. His opinion was that you:
(a) Have a very adolescent-like interpersonal style and present as being a quite psychologically vulnerable person. Cummins report at [21].
(b) He considered your presentation consistent with a diagnosis of Autism Spectrum Disorder. Cummins report at [46].
(c) He foreshadowed that your current mental health would be destabilised if you were to be incarcerated. He was concerned about the impact on your relationship with Mr Li. Cummins report at [51].
67 Dr Kristen Clayer, senior registrar in forensic psychiatry at the Victorian Institute of Forensic Mental Health, in her report of 6 June 2016, agrees, to an extent, with the expressed opinions of Mr Cummins. She was of the view that you may have a specific learning disorder, or alternatively, a mild intellectual disability.
68 She noted your language was immature for your age and that you had difficulty in regulating your emotions and behaviour in an age-appropriate manner. She considered you had some features of autistic spectrum disorder, but without more, she could not diagnose the condition.
69 She conceded that you suffered mild to moderate depression and anxiety intermittently. She said that you have used child pornography to regulate your emotions. In her assessment, you meet the DSM-V criteria for paedophilia, that is, you are sexually attracted to young males.
70 Both Mr Cummins and Dr Clayer agree you would benefit from a sex offender treatment program. In your favour, you agreed to participate in such. Cummins report at [31]. You openly admitted in your record of interview that you need support in relation to your offending. Record of interview Question and Answer 268.
71 You present as a psychologically immature and vulnerable person. Your counsel, Mr Anderson, submitted that provided support for some application of the Verdin’s Principles 5 and 6, and in the circumstances, I agree with that submission and that has been factored into account in your favour. It will be difficult for you in custody and that may impact with a deterioration in your mental health condition.
Imprisonment more burdensome
72 You have served your remand in difficult circumstances in protection and I have taken that into account. It will be necessary for you to serve any term of imprisonment in protection. Recently you were moved from the MRC to PPP, following another prisoner threatening/intimidating you at MRC. At PPP there have been further episodes where you have been subjected to alleged sexual assaults that have now been reported to the authorities. Those assaults are currently being investigated.
73 You were moved back to MRC recently and have been held in Deakin B Unit for four to five weeks for your own protection, where you are held in custody 23 out of 24 hours. Because of your fears of further assaults, you do not leave your cell. You are currently in a management unit for your own safety and have experienced ongoing taunts.
74 Having regard to the expressed opinion of both Mr Cummins, Dr Clayer, and Mr Jackson in his report, I have taken into consideration the fact that imprisonment will be more burdensome for you than the ordinary gaol inmate and also there is a risk of your mental health deteriorating.
Neuropsychology assessment
75 I have had regard to the neuropsychological assessment of Martin Jackson. His report of 9 August 2016, confirms following his assessment that:
(i) You do have a longstanding verbal learning disorder and that was confirmed on his testing;
(ii) Your verbal intellectual abilities varied from extremely low to low average range;
(iii) Your basic perceptual processing speed was in the lower average to average range, whilst basic verbal processing speed was borderline;
(iv) Your immediate memory span was in the average range, whilst working memory span and sequencing span was low average;
(v) You were initially overwhelmed by all tests of new learning and memory and your initial performances were in the extremely law range. You benefitted from logical structure and, to a lesser extent, repetition though you struggled to learn beyond your immediate memory span. You demonstrated language strengths in the low average range whilst reading of irregular words and letter fluency was borderline;
(vi) Your basic perceptual executive skill, including planning, organisation and visual logical thinking were in the average range, although more complex perceptual planning and organisation was poor. Verbal executive skills were generally in the extremely low to borderline range.
76 He noted that clinically you presented with no evidence of symptoms of mood disorder, such as depression, anxiety or stress, but on his formal questioning, you reported symptoms suggestive of moderate depression, anxiety and stress.
77 He found no evidence of exaggeration and considered that your neuropsychological profile was valid and reliable.
78
He considered that the areas of impairment identified, strongly suggested the presence of two specific areas of brain damage in the left frontal lobe and right temporal lobe. The most plausible explanation for that appeared to be from
a severe traumatic brain injury that you sustained in a motorcycle accident when you were aged 16. You suffered a fractured skull, brain swelling and hospitalisation for three months. You reported difficulties with concentration and memory following that accident. He considered his assessment would be consistent with a coup and contrecoup injury to the left frontal lobe and right temporal lobe.
79 Overall, his results confirmed the presence of a mild, longstanding discrepancy between your verbal and perceptual intellectual skills, low average and average respectively, but also in the presence of severe impairment of verbal executive skills, visual and new learning and memory and some aspects of processing speed and higher attention skills, which he attributed to your brain injuries sustained at age 16.
80 He did not think that your profile was consistent with an intellectual disability. He noted that if indeed you had suffered a severe brain injury when you were aged 16, that would account for why you present as being somewhat immature, as it is highly likely to have affected your emotional development.
81 He considered that if your traumatic brain injury is the cause predominantly of your current cognitive impairment, then clearly it would have been present during the offending, as it is of a permanent nature.
82 He noted from a neuropsychological perspective, the difficulties that you have include being slow to process information, particularly verbal information, such that it takes you almost twice as long as the average person to process what people say to you. You do get overwhelmed initially when people give you information, especially if it is unstructured and you will require multiple repetitions of information to try and improve your ability to retain information. The fact that things are written would be of some, but limited assistance, given your relatively poor reading ability. He considers you will also have significant difficulties verbally working through problems and coming up with solutions, given the level of planning, organisation and abstract thinking impairment seen on assessment.
83 Mr Jackson noted there was a correlation between your offending behaviour, commencing around the age of 16, when you sustained the brain injury, so that there may well be a significant link between your learning disability/traumatic brain injury and your inability to learn from your errors over the last 30 years. He did not consider that you have a disorder of impulse control, nor was there any evidence of having a condition which makes you disinhibited. Furthermore, he did not consider that your condition is of a severity where you would be unable to understand the wrongfulness of your actions. His comments provide a proper context to this offending and explains your behaviour, but in no way excuses your behaviour.
84 He confirms you have a neuropsychological condition that affects your ability to make reasoned decisions and appropriate judgments. He confirms that your condition would have a significant impact on your ability to remember and follow any obligations that are put on you and he believes that condition contributed to your breach of the orders relating to the sex offender registration obligations.
85 In terms of the offending relating to child pornography, he considered that your condition is not related to that, other than you do have a condition that makes it somewhat difficult for you to learn from your mistakes. The actual issue of child pornography or paedophilia is not related to your neuropsychological condition.
86 He agrees that your condition means that imprisonment is more difficult for you because of the issues you have in processing information.
87 He recommended a referral to a community-based support team, such as Arbias upon your release, to assist with your disability.
88 Furthermore, he considers any prospects for rehabilitation would be improved by having a supportive structure to take into account your deficits. Treatment would be best provided in the form of structure and support from organisations and others within the community to assist you with your day-to-day functioning, meeting your obligations, potentially trying to learn new skills, simply by learning new routines with repetition.
89 I turn now to the mitigating factors that I have taken into account. You entered a plea of guilty and I have taken into account in your favour. It is an important matter. I have had regard to the timing of the plea, at committal mention, and accept that it was entered at the earliest stage. By your plea, you indicated your willingness to facilitate justice. There is real utility in your plea. You have avoided the cost of a trial. You are entitled to a sentencing discount for your plea, that is real and not illusionary.
90 You have been fully co-operative with the police and made relevant admissions. By your plea, you acknowledge your wrongdoing and it is an acceptance of responsibility on your part. I have also had regard to the fact that when the police attended your home and executed the search warrant, the materials that they located with the relevant child pornography on it, were throughout the house, in the kitchen, in the study, in the en-suite and in your bedroom. Overwhelmingly, the material was located within the communal areas of your house, but you did not dispute possession. Further, the timeframe during which you accessed the pornography was based on the admissions that you made to police upon your arrest. In the circumstances, I find that is evidence of genuine remorse.
91
I am further satisfied that you have demonstrated your compliance and
co-operation in the various assessments that have been undertaken at the request of the court. During that process you have indicated insight into your offending behaviour and repeated your willingness to have treatment to address your underlying offending behaviour.
92 At no stage have you sought to justify or excuse your behaviour. You have expressed the desire to not want to re-offend in the future.
Delay
93
I have taken into account the delay, in terms of finalising your case between
10 December 2014 and 26 April 2016. The Crown conceded that there was some delay in bringing the prosecution, but most of the delay in your case is referrable to the ordinary delays in progressing indictable matters through the various stages and I have taken it into account in a general sense only.
94 I also took into account the fact that you utilized your time whilst on bail to obtain some counselling. There were five sessions at the Point Cook Medical Centre where the psychologist directed your sexual offending. That was interrupted when you were placed back on remand. You were also compliant with the strict bail conditions.
95 I acknowledge that you have repeatedly indicated your willingness to undertake a sex offender’s treatment program. The opportunity for such treatment in the past, whilst you have been undergoing sentences in Tasmania, has never arisen. Given your compliance and attitude demonstrated in the pre-sentence period, I am optimistic that you would comply with such programs.
96 In terms of your risk of re-offending, it was assessed as being low to moderate by Mr. Cummings for viewing child pornography and low for engaging in contact sexual offences. He did not consider you have a psychopathic personality disorder.
97 Dr Clayer considered that you had a low risk of any contact sexual offending, but a moderate to high risk with further viewing or downloading or transmission of child pornography.
98 In the pre-sentence report, Belinda Pastuovic, assessed you as having a high risk of general re-offending.
99 Ms Tracey Allen, senior clinician, assessed you as falling in the high risk category for re-offending.
100 In the past you have not received any professional support modified for your particular unique set of circumstances, nor have benefited from any structured treatment to support and assist you to identify and manage high risk situations.
101
Overall, I consider, given your current evolving insight into the effects of child pornography on victims, your commitment to engaging in offence behaviour management and treatment and your disgust at the offending, means that
I assess your risk of re-offending in a like manner as being moderate to high. That can be lowered provided that you do undertake the recommended treatment. It is essential that your willingness to have treatment be implemented effectively, noting in particular the information contained in the neuropsychological assessment.
102 You have the ongoing support of Mr Li. He is fully cognizant of the features of your offending and your unique personal situation. He is still willing for you to come and live with him upon your eventual release, so that does offer a degree of protection for community in the future.
103 I have had regard to the contents of his letter where he describes you as being a hardworking and honest person.
Submissions on sentence
104 Mr Anderson submitted, having regard to all the relevant factors and the guideline judgment in Boulton, that a term of imprisonment was appropriate in the circumstances of this case, but submitted that that term may be accompanied by an appropriately conditioned CCO.
105 I note in accordance with the Court of Appeal decision in Atanackovic v R [2015] VSCA 136 at [95], the guideline judgment of Boulton does not apply to the sentencing the Federal offenders by Victorian courts. It does, however, apply to the sentencing in respect to Charges 2 and 3.
106 It was recognised in Boulton that the conditions on a CCO are capable of being highly punitive, at [13] of Boulton appendix, and can provide for substantial general deterrence, at [18] of Boulton Appendix.
107 It was foreshadowed that even in cases of relatively serious offences that would have attracted a medium term of imprisonment in the past, a properly conditioned CCO may serve the purpose of punishment, at [25] of Boulton Appendix.
108 Mr Robbins, the prosecutor, submitted having regard to the serious nature of your offending, an immediate term of imprisonment was required. He emphasised general deterrence being paramount, highlighted the maximum penalties, particularly in relation to accessing pornographic material. He submitted specific deterrence also assumes significance. He noted the lengthy course of conduct, close to five years, the size of the child pornography material in your possession, your lack of insight, having regard to your past criminal offending and your awareness that what you were doing was illegal. He challenged the assessment that you were of a low risk of re-offending.
109 In formulating the appropriate sentence, in respect to the Commonwealth charge, Charge 1, I am required to take into account all the matters set out in s.16A of the Crimes Act 1914 (Cth). Section 16A(1) requires the court to impose a sentence that is of a severity appropriate in all the circumstances of the offence, and s.16A(2) of the Crimes Act provides that, in addition to any other matters, the court must take into account such of the listed matters that are relevant and known to the court. I do not propose to enumerate all of those matters, I have had regard to them and referred to them in passing in these remarks.
110 The Sentencing Act 1991, Victoria, in s.5 sets out the governing principles to be applied by the courts in respect to Charges 2 and 3, the State offences. I must impose just punishment. In respect to Charge 3, the serious sexual offender provisions also apply, and I have already referred to that earlier.
111 In relation to Charge 1, the accessing child pornography charge, this is the most serious of the offending and it is a serious example, having regard to the lengthy period of the offending and the nature and volume of the images already described.
112
In relation to Charge 2, relating to your failure to comply with your SORA requirements, I consider that offending to be at the lower end of the scale of seriousness, having regard to your particular documented learning difficulties and the current neuropsychological assessment. I do not consider this to be
a flagrant abuse and I accept that you would have had some difficulties comprehending and understanding all the reporting requirements, and to an extent, that explains your offending. Having said that, you were still aware of the SORA requirements and you should have complied.
113 Charge 3, knowingly possess child pornography, I noted it was for one day only, but still it refers to a significant body of material and it is a serious example of this sort of offence.
114
In relation to Charges 1 and 3, you also have relevant prior criminal history.
I have to have regard to the totality principle as was stated in the New South Wales Court of Criminal Appeal decision of R v Porte,[34] the offences of accessing and possessing child pornography are separate and distinct offences, although the one offence is linked to and substantially overlaps with the other and therefore I must impose a sentence which reflects the total criminality of the two offences.
[34] [2015] NSWCCA 174 [99]-[100].
115 The offences are directed at different vices and I have noted the accessing of the material was over a long protracted period, whereas possession was for one day only.
116
In relation to Charge 3, the Crown have not sought a disproportionate sentence and I do not intend to impose one. I note the legislative direction that
a sentence to be imposed on Charge 3 is cumulative, unless I otherwise directed and I propose to do so.
117
I have borne in mind the principle of totality in respect to the sentence on
Charge 3, but I also note that the principle of totality is limited by law relating to sentences imposed on serious sexual offences and I refer to the High Court decision of R H McL v The Queen,[35] nevertheless I have still considered the need for today's sentence to reflect the totality of your offending.
[35] (2000) 174 ALR 1 [76].
118 Given that general deterrence is of paramount significance and also specific deterrence plays a significant role in your sentence for your offending, the disposition to be imposed is a term of imprisonment, with non-parole periods fixed. I did seek reports concerning your suitability for a community corrections order, but having properly reflected on all the relevant material, including the serious nature of the offending and your past criminal history, I have ultimately come to the conclusion that the only just sentence, and one that reflects the community's abhorrence of child exploration through accessing and possessing child pornography material, is one as I have described.
119 Mr Dennis, the formal court orders will be:
120 Charge 1, the Commonwealth charge of accessing child pornography via a carriage service, you will be convicted and sentenced to be three years', six months' imprisonment, to commence one year after the commencement of the sentence imposed on Charge 3. I fix a non-parole period of one year and six months.
121 Charge 2, the State offence of failing to comply with reporting conditions under SORA legislation, you are convicted and sentenced to three months' imprisonment.
122 Charge 3, the State offence of knowingly possess child pornography material, you are convicted and sentenced to 18 months' imprisonment. I fix a non-parole period of 12 months.
123 That makes a total effective sentence is four years’ and six months' , with a non-parole period of two years', six months'.
124 I declare a period of 295 days is to be reckoned as time already served under the sentence and it is ordered that that declaration has been made and its contents to be entered into the records of the court.
125 I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of six years, to serve four years.
126 It is declared that you must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004. The reporting period is for life.
127 I make the forfeiture and destruction orders sought.
128 I direct that it be noted in the records of the court that you have been sentenced as a serious sexual offender in respect to Charge 3.
129 Hopefully that will give effect to my sentence, the effect of which is that you are to serve four years and six months, with a non-parole period of two years and six months.
130 That completes the sentence.
131 COUNSEL: If Your Honour pleases.
132
HER HONOUR: Alright. Look, I thank you both for your infinite patience in respect to this matter. It has been a hard one. It has been a difficult case,
Mr Dennis, but ultimately I think it has been very useful for everyone to be able to reach this point that we have. There is so much information that can be used to guide your future. So now you will be classified and hopefully your situation will improve greatly whilst you are in custody, alright? Thank you.
133 OFFENDER: Thank you.
134
HER HONOUR: Now the forfeiture order I have signed. Did you want,
Mr Anderson, for us to give a fresh notice of the reporting requirements under the SORA legislation to your client? Just so that he has that in his possession.
135
MR ANDERSON: I am unaware of whether he has one in his possession.
I know that I have got a copy in my - - -
136 HER HONOUR: He was served at the time, in August, by the police.
137 MR ANDERSON: Yes.
138 HER HONOUR: In August 2014. But we can give him another one if he likes.
139 MR ANDERSON: Yes.
140 HER HONOUR: It might be best.
141 MR ANDERSON: I just don't know if that's within his property or whether it might be. I know that I've got a copy of that.
142 HER HONOUR: No, all right. Well look, we'll give him a fresh copy so that he can go through with the notice of reporting obligations with people who are responsible for his care. Do you only need one copy of the forfeiture?
143 MR ANDERSON: I think so, Your Honour. Thank you.
144 HER HONOUR: All right. And I will make a note in the custody section that all the material - I think - have we already provided that to Corrections? Well, what I'll do is, I'll make sure that my associate compiles all the reports and puts them in an envelope to be marked "confidential", so that they can go with him at the time he's recepted now and classified.
145 MR ANDERSON: Yes.
146 HER HONOUR: It may assist them.
147 MR ROBINSON: Was it Your Honour's intention to provide a copy of your sentencing remarks as well?
148 HER HONOUR: The revised sentencing remarks will be sent to Corrections, yes.
149 MR ROBINSON: Yes. Thank you, Your Honour.
150 HER HONOUR: Yes. And it will also be provided at some stage to the people who assess Mr Dennis as to suitability for programs. But given the comprehensive nature of the pre-sentence assessments, they will already be aware of his situation, but certainly we will send on to those authors the sentencing remarks as well.
151 MR ROBINSON: Thank you, Your Honour.
152 HER HONOUR: Alright. Thank you for your help. I appreciate that, in the circumstances of this difficult matter. Thank you.
153 MR ROBINSON: Thank you, Your Honour.
- - -
Level 2 – Solo masturbation by a child or non-penetrative sex acts between children;
Level 3 – Non-penetrative sexual activity between children and adults;
Level 4 – Penetrative sexual activity between children and adults;
Level 5 – Sadism, Bestiality or Humiliation or Child Abuse;
Level 6 – Anime, cartoon, comics, and drawings depicting children engaged in sexual poses or activity.
4
0