Director of Public Prosecutions (Cth) v Gardiner
[2024] VCC 1287
•23 August 2024
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00955
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| GEOFFREY GARDINER |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 20 August 2024 | |
DATE OF SENTENCE: | 23 August 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Gardiner | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1287 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Use a carriage service to transmit and make available abuse material, contrary to s.474.22(1) of the Criminal Code (Cth) (1 charge); Moderate an electronic service used for child abuse material, contrary to s.474.23A(1) of the Criminal Code (Cth); and Posess or control abuse material obtained or accessed using a carriage service, contrary to s.474.22A(1) of the Criminal Code (Cth) (1 charge)– plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Hurt v The King and Delzotto v The King [2024] HCA 8; R v Glasheen [2022] NSWCA 191; R v Taylor [2022] NSWCCA 256; DPP (Cth) v D'Alessandro (2010) 26 VR 477
Sentence: Total effective sentence: 8 years and 6 months imprisonment.
Section 6AAA declaration: But for the pleas of guilty, would have been sentenced to 11 years imprisonment with a non-parole period of 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P Teo | Emma Turnbull Lawyers |
HER HONOUR:
1Geoffrey Gardiner, you have pleaded guilty to three charges:
Charge 1:Use a carriage service to transmit and make available child abuse material, contrary to sub-s474.22(1) of the Criminal Code (Cth) between 5 May 2021 and 3 August 2021.
Maximum penalty: 15 years’ imprisonment.
Charge 2:Moderate an electronic service used for child abuse material, contrary to sub-s474.23A(1) of the Criminal Code (Cth) between 5 May 2021 and 4 August 2021.
Maximum penalty: 20 years’ imprisonment.
Mandatory minimum penalty: 5 years’ imprisonment.
Charge 3:Possess or control child abuse material obtained or accessed using a carriage service, contrary to sub-s474.22A(1) of the Criminal Code (Cth) on 4 August 2021.
Maximum penalty: 15 years’ imprisonment.
2The facts and circumstances of your offending are as follows.
3On 5 May 2021 investigators in the United States executed a search warrant in relation to the activity of a user and administrator of several private KIK groups dedicated to the distribution of child abuse material. Upon detection the user signed over his profile to a special agent allowing him to infiltrate the group and monitor its activities.
4The special agent discovered that the group was structured in five levels or tiers, with each level or tier comprising of around 75-100 people. The group was overseen by a private group called the “New Admins” which was a group comprising of the master administrator and sub-administrators. The “New Admins” discussed the management of the other private groups and discussed ways to avoid detection by authorities.
5The rules of the group were enforced by the master administrator and sub administrators.
6The tiered system rewarded members by promoting them to a higher tier that distributed more explicit child abuse material. In order to be promoted a user had to regularly post child abuse material to the group and had to supply the group with what the administrators regarded as “high-quality” child abuse material. “High quality” child abuse material was material of an extreme and highly depraved nature.
7You were identified as a sub-administrator of the group active between 5 May 2021 and 4 August 2021.
8In this role you performed the following tasks:
(a) monitored the membership numbers of each of the private groups;
(b) monitored the behaviour of the group members;
(c) removed members who were disruptive from the groups;
(d) removed members who were inactive in the groups; and
(e) enforced the rules of the group, including the requirement that members regularly post child abuse material.
9You were also a member of the “New Admins” – the master administrator and sub-administrators’ group which oversaw the management of the five sub-groups or tiers. (Charge 2)
10In addition to your role as a moderator/administrator you were also an active participant providing child abuse material to the group.
11On 21 May 2021 you uploaded to one of the private groups two images. The first depicted two naked female children aged between 9 and 12 who were naked from the waist down. One child’s vagina was visible, the other’s buttocks were visible. The second image was of a female prepubescent child on all fours on a bed with her buttocks facing the camera.
12On 7 June 2021 you posted a MEGA link containing 235 gigabytes of child abuse material in the “New Admins” group. The special agent was able to access this material. A representative sample of 15 videos was downloaded and which were categorised as category 1 child abuse material. Three of the videos depicted the following:
(a) A female child aged between approximately six and eight years, naked from the waist down. The child has ‘FUCK ME’ with arrow pointing towards her vagina written in marker on her stomach. An adult male with an erect penis penetrates the child’s vagina.
(b) A female child aged between approximately four and seven years, lying on her back. An adult male with an erect penis pulls the child’s underwear to the side and penetrates her vagina.
(c) A female child aged between approximately five and seven years, naked from the waist down. The child is performing oral sex on an adult male with an erect penis. The adult male ejaculates into the child’s mouth. The video is in slow motion.
13Furthermore, in your record of interview, you made admissions to using your mobile phones to transmit child abuse material to the private Kik groups at a frequency of ‘probably every few days’ during the offence period, including the day prior to your arrest. (Charge 1)
14Your Samsung and Blade mobile phones were forensically analysed and found to contain child abuse material. (Charge 3) The child abuse material was categorised by investigators in accordance with the INTERPOL Child Abuse Material Baseline, as follows:
Samsung SM-A315G mobile phone
Category
Number of unique images
Number of unique videos
Category 1
1294
422
Category 2
3123
235
TOTAL
4417
657
15The total number of child abuse material files located on your Samsung mobile phone was 5,074, being 4,417 images and 657 videos.
Blade A5 2020-T mobile phone
Category
Number of unique images
Number of unique videos
Category 1
367
111
Category 2
611
66
TOTAL
978
177
16The total number of child abuse material files located on your Blade mobile phone was 1,155, being 978 images and 177 videos.
17The total number of child abuse material files the subject of Charge 3 is 6,229.
18A representative sample of seven child abuse material files located on the offender’s devices depicts the following:
(a) An image of a female child aged between approximately three and four years, lying on her back with her legs in the air and pants around her knees. The child has her eyes closed and appears to be unconscious or heavily sedated. An adult male with an erect penis is ejaculating into the child’s mouth. Her mouth is full and the ejaculate has run down her cheeks. A second adult male with an erect penis is using the child’s hand to separate the labia of her vagina as he penetrates the child’s anus with his penis.
(b) An image of a female child aged between approximately five and seven years, naked and kneeling down. Her vagina is visible. The child is surrounded by three adult males with erect penises, one male’s penis is in the child’s mouth and she has the other two male’s penises in each hand.
(c) An image of a female child aged between approximately two and four years, naked and crouching underneath a large dog. An adult woman dressed in lingerie is holding the dog’s erect penis whilst the child performs oral sex on the dog.
(d) An image of a female child aged between approximately four and six years, naked and lying on her back. Her vagina is the focus of the image, and an erect adult penis is resting between her legs, with ejaculate seeping from her vagina.
(e) An image of a naked female child aged between approximately 12 months and 2 years. An adult’s erect penis is resting between the child’s anus and vagina. The child’s vagina and right side of her inner thigh is covered in what appears to be ejaculate.
(f) An image of a female child aged between approximately 18 months and 2 years, naked from the waist down. The child’s legs are apart, exposing her vagina and an adult male is penetrating her anus with his erect penis.
(g) An image of a female child aged between approximately 12 months and 18 months. The child is lying on an infant change mat with her nappy undone and her vagina visible. A male hand is spreading the child’s labia to show what appears to be ejaculate seeping from her vagina.
19You were arrested on 4 August 2021. Police seized your mobile phones you admitted that there was child abuse material on both your devices.
20You participated in a record of interview in which you made full admissions to your role and participation in the group and to the transmission and possession of child abuse material. You told police you regularly posted child abuse material to the group at a frequency of “probably every few days”.
Sentencing considerations
21Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take into account a number of different matters if they are relevant and known to me in arriving at your sentence. I take into account the following matters which were raised at your plea hearing.
22I begin with your plea of guilt and your cooperation with authorities.
23This matter resolved at a committal mention on 2 June 2022. It is not disputed that this a plea at the earliest opportunity, the timing of which attracts a Worboyes[1] discount.
[1]Worboyes v The Queen [2021] VSCA 169
24Your plea has significant utilitarian value and in conjunction with you full and frank admissions to investigators I accept it is indicative of remorse on your part.
25You cooperated fully with authorities upon your arrest.
26Given your plea was entered over two years ago, it is appropriate to consider next the issue of delay.
27The reason for the delay in this matter has been the need to await the High Court decision of Hurt v The King and Delzotto v The King,[2] which considered the application of the statutory minimum penalty, relevant to Charge 2 here.
[2][2024] HCA 8 (“Hurt and Delzotto”)
28This delay is of course in no way attributable to you. I accept the delay is relevant in sentencing you in two ways. First, you have experienced considerable uncertainty and aguish with this matter unresolved for over three years, and secondly you have not re-offended in any way during this period. I take this into account in my assessment of your prospects of rehabilitation.
29I turn now to your character, antecedents and personal circumstances.
30In outlining these matters, I refer in the main to the report of Carla Lechner, Clinical Psychologist, who assessed you and prepared a report dated 2 July 2024 which was tendered at your plea.
31You were born in October 1967. You are presently 56 years old.
32You have no prior criminal history. You come from a stable and loving home and have a good relationship with your parents, with whom you live.
33You were once briefly married and had one long-term relationship which lasted three years but are presently unmarried and you do not have children.
34You completed your Year 12 and thereafter worked in retail and warehousing and more recently in aged care.
35You have not been employed since the outset of the Covid pandemic. You told Ms Lechner that you lived with your parents during the lockdown period. You said you were drinking very heavily and became absorbed in online life. As well as your involvement with the child abuse group, you involved yourself in groups promoting conspiracy theories.
36You told Ms Lechner that you had only used illicit drugs recreationally in your youth but that you had been a heavy drinker since the age of 17. You told Ms Lechner you had given up drinking in 2023.
37On the basis of her testing Ms Lechner found you to be “likely mildly psychologically distressed”.
38On your offending behaviour you expressed an understanding of the damage inflicted on children by the participation in child abuse exchange groups. You said you were not sexually interested in children and you said you found some of the material disgusting. You expressed shame for your offending and said since getting arrested you had woken up to yourself and that you were revolted in yourself. Ms Lechner found your insight and reflections upon your behaviour to be genuine.
39Ms Lechner assessed you as being a moderate risk of reoffending. She found you to have, despite your denial of a sexual interest in children, deviant sexual interests, and opined a further assessment of your sexual interests was warranted. She further opined that you remain a risk of reoffending if you relapse into alcohol abuse.
40Medical material was tendered. In summary you suffer osteoporosis, fatty liver disease, high blood pressure, and high cholesterol, osteoarthritis, chronic lower back pain and restless leg syndrome.
41Both your parents wrote letters of support on your behalf. Your parents rely on you for ongoing support in all aspects of their daily life.
42Turning now to consider the circumstances and objective gravity of your offending.
43Your counsel, Mr Teo, submitted that your offending occurred in the context of your isolation during Covid lockdowns and your heavy drinking during this period. I accept that your offending is partially explained by your situation, but your situation alone does not explain why you involved yourself so completely in a group devoted to the exchange of child abuse material. You denied to Ms Lechner that you are sexually interested in child abuse material, but quite clearly you are, and moreover interested in material of a highly depraved nature. So much is evident by the large amount, and the content of child abuse material you stored on your devices.
44In respect of Charge 1, the material you supplied to the group in the MEGA file contained child abuse material of the most depraved and repellent nature. I accept your counsel’s submission that you did not know what exactly was contained in the MEGA file, but this does not diminish the obvious gravity of your offending in respect of this conduct. You provided the group with a very large amount of child abuse material, and you clearly did this to improve your standing and status in the group, and with the clear knowledge that in order to achieve this, you not only had to provide child abuse material but you had to provide what the group termed “high quality” child abuse material which meant material, of the worst imaginable kind. Charge 1 is a rolled-up charge comprising not only your conduct on 21 May 2021 and 7 June 2021 but also your admitted conduct in transmitting child abuse material “probably every few days”. Accordingly, the criminality involved in the charge is greater than with a charge involving only one episode of criminal conduct.
45In respect of Charge 3, you possessed a large amount of child abuse material much of which was the type of material which is seen in the worst examples of this crime. It includes material depicting very young children, including infants, children being penetrated by adults, sometimes multiple adults, children involved in sexual acts with animals, and children being subjected to degrading and sadistic treatment. The child abuse material you possessed was quite simply abhorrent.
46I consider Charge 1 and Charge 3 to be objectively serious examples of the offences and your moral culpability to be high.
47Turning to Charge 2 it is not alleged by the prosecution that you were a host or creator or master administrator of the group but there are other features contributing to the gravity of your conduct. Your offending involves a period of three months. You were clearly a person of high status within the group. You were part of the administrators oversight group. You performed a number of important tasks including promoting and demoting members within the five groups, removing members and as part of the administrators oversight group you were involved in discussions on strategies on how to avoid detection by authorities. The group had approximately 75-100 members at each level or tier. It was therefore a large group dedicated solely to the transmission and exchange of a large amount of child pornography, moreover the processes of promotion within the group/tiers relied upon the supply of ever more extreme material. I regard your offending in respect of Charge 2 as therefore objectively serious and your moral culpability high.
48Charge 2 carries the statutory minimum head sentence of five years’ imprisonment.
49As has been discussed, in the decision of Hurt and Delzotto, the High Court considered the operation of the prescribed minimum penalty regime. The following relevant principles can be distilled from the judgment.
50First, the consideration must be directed to the statutory minimum sentence at all steps in the sentencing process.
51Secondly, the statutory minimum penalty functions as a yardstick representing the least worst category of case for which a sentence of imprisonment is required before applying any potential discounts. The yardstick imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances.
52Thirdly, the statutory minimum sentence is not to be considered just as a final step in the process if the sentence to be imposed is imprisonment.
53Fourthly, the circumstances that may operate to reduce a sentence below the statutory minimum period are exceptional.
54Fifthly, a legitimate procedure in imposing a sentence involving the provisions concerning a prescribed minimum penalty offence is to determine prima facie with the use of the prescribed minimum sentence as a yardstick before considering the potential discounts.
55Finally, that the statutory minimum sentence regime should result in more serious sentences of imprisonment and longer terms of imprisonment overall.
56Sections 16AAC(2) and (3) of the Crimes Act 1914 are the relevant statutory provisions according to which a Court may impose a sentence of imprisonment less than the prescribed minimum only if it considers that it is appropriate to reduce the sentence because the Court is taking into account the person is pleading guilty and/or the person has cooperated with law enforcement agencies. In the circumstances the Court may reduce the sentence by an amount that is up to 25 per cent of the period equal to the prescribed minimum penalty in respect of each head of reduction with an overall reduction of 50 per cent if the Court is taking into account both heads of reduction.
57On behalf of the Director, Ms Breckweg submitted these sections are statutory mechanisms which allow the Court to impose a sentence lower than the mandatory minimum when it considers that adequate recognition cannot be given to an offender’s plea of guilty and cooperation without going below the mandatory minimum head sentence.
58Ms Breckweg submitted that in Hurt and Delzotto, and consistent with previous authority, the majority held that it is “legitimate”, and in the Crown’s submission it is appropriate, for a Court to first determine a “prima facie sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the discount”. In other words, the appropriate process will be that the Court should first engage in an instinctive synthesis of all relevant factors, except for the plea of guilty and any cooperation; it should then proceed to give separate consideration to ss16A(2)(g) and (h) factors; and only then determine whether the s16AAC mechanism is required so as to move below the prescribed mandatory minimum term.
59Accordingly, she submitted a s16AAC reduction will ordinarily only be appropriate where the prima facie sentence determined falls within, or falls close to, the “least serious circumstances”.45 This approach is consistent with the approach taken by the New South Wales Court of Criminal Appeal in R v Glasheen[3] and R v Taylor[4].
[3][2022] NSWCA 191
[4][2022] NSWCCA 256
60In respect of child abuse offences more generally, the relevant sentencing considerations have been widely discussed in the authorities.
61In DPP (Cth) v D'Alessandro,[5] the Court of Appeal set out a number of propositions that have been accepted by appellate courts in respect of child pornography offences, including the following:
“'First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender's prior good character.”
[5] (2010) 26 VR 477, 488 [23]
62Appellate courts throughout Australia have stated the following general principles for offences involving child abuse material apply to sentencing:
(a) General deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse.
(b) There is a paramount public interest in promoting the protection of children as accessing and possessing child pornography is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply this market.
(c) The fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences.
(d) Offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both such offending is becoming increasingly prevalent, and that it is difficult to detect, given the anonymity the internet can provide.
(e) The fact that an offender was not involved in the distribution or sale of child abuse material, does not mitigate the offending. However, the fact that an offender did pay for the acquisition of child exploitation material can aggravate the offence.
(f) The subjective circumstances of an offender must not overshadow the objective gravity of the offences.
(g) In a case of dissemination, the number of persons to whom the material is distributed is relevant.
(h) Whilst the volume of material is an indicator of the seriousness of the offence, the type of material and the degree of its depravity is the primary focus and quantity is the secondary focus.
Sentencing submissions
63Turning now to the submissions of the parties. It was not disputed that your offending called for a term of imprisonment to be served by way of a head sentence and a non-parole period.
64Mr Teo in mitigation relied on the following considerations; your plea of guilty, cooperation with authorities and the delay in finalising this matter.
65He submitted that your incarceration will be hard on your elderly parents who are reliant on you, and you too will experience considerable anguish being separated from them. This is your first time in custody and in addition to being separated from your elderly parents, your various health issues, although manageable in custody, will cause you some difficulty.
66There was no submission made that Verdins considerations were engaged in sentencing you.
67Mr Teo submitted that your prospects of rehabilitation were good given your remorse and insight and given you have not re-offended in the three years since your arrest.
68He acknowledged the seriousness of your offending but submitted that Charge 2 was although not the least worst example of the offence, your offending on this charge was at the lower end of seriousness. He submitted that in consideration of your plea of guilty and cooperation with authorities it was open to me to sentence you to a sentence below the statutory minimum sentence.
69Ms Breckweg on behalf of the Commonwealth Director, submitted that your conduct in respect of each offence was grave. She submitted beyond your plea of guilty and your cooperation upon detection there was little to be taken into account by way of mitigation.
70She submitted on your prospects of rehabilitation that Ms Lechner had concluded that your prospects of rehabilitation were modest, and Ms Breckweg further submitted that you have not offered any real explanation about why you behaved this way.
71On Charge 2, Ms Breckweg submitted that you should be sentenced to a term of imprisonment above the statutory minimum sentence.
Conclusions
72Turning now to my own conclusions.
73The sentence I impose must unequivocally denounce your conduct and give effect to the law’s obligation to protect children from exploitation and abuse. I must ensure that you are adequately punished for your offending.
74As I have stated the authorities make it clear that general deterrence is the primary sentencing consideration, and your subjective circumstances carry less weight in the sentencing exercise.
75Having said that I take into account the matters raised in mitigation. I take into account your plea of guilty, your cooperation with authorities and the delay in this matter. I do so in the ways I have already discussed in these remarks.
76I also take into account the situation of your parents and the hardship your incarceration will occasion them.
77Prison will be a difficult place for you. You are going to prison for the first time as a middle-aged man and you have some health difficulties.
78As I have indicated I accept you are genuinely remorseful for your behaviour and in your discussions with Ms Lechner you expressed an understanding of the harm occasioned to children by the consumption of child pornography. This bodes well for your rehabilitation. I take into account also that you have not reoffended since your arrest in August 2021. On the hand, despite your denials to Ms Lechner, you are clearly interested in highly deviant child abuse material, and you have not been prepared to address this and have not offered any satisfactory explanation why you behaved as you did.
79I can only assess your prospects of rehabilitation as moderate in accordance with the opinion of Ms Lechner.
80There is a presumption of cumulation for sentencing for Commonwealth child sex offences. However, this presumption does not displace the application of the principles of totality or parsimony.
81Totality is an important sentencing consideration given you face a number of very serious charges all potentially attracting significant terms of imprisonment. I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending. I am of the view there need to be some cumulation in respect of all charges which all consist of discrete heads of serious criminal conduct on your part. Although I accept that Charges 1 and 2 are related conduct and I take that into account in determining the appropriate measure of cumulation.
82I have had regard to the maximum penalty in respect of all offences and the statutory minimum sentence in respect of Charge 2.
83In respect of Charge 2, as I hope I have made clear, your offending does not fit in the least worst category. You are entitled to a discount by virtue of your plea of guilty, and a discount in respect of your cooperation with authorities upon detection, but I accept the prosecution submission that there is very little else by way of mitigation and given this and given the gravity of your conduct in respect of this charge, the sentence I will impose will be above the statutory minimum sentence.
84Taking into account all the matters I am required to I intend to sentence you as follows.
85On Charge 1 you are convicted and sentence to three years’ imprisonment.
86On Charge 2 you are convicted and sentenced to seven years’ imprisonment.
87On Charge 3 you are convicted and sentenced to three years’ imprisonment.
88Charge 2 is the base sentence and starts today.
89I direct six months of the sentence on Charge 1, and one year of the sentence on Charge 3 be served cumulatively
90That results in a total effective sentence of eight years and six months.
91I set a non-parole period of five years and six months.
92You have served nil days of pre-sentence detention.
93Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have sentence you to a total effective sentence of 11 years with a non-parole period of 8 years.
94You are a registered sex offender for life.
95To achieve the cumulation I have ordered, I set the following start dates: Charge 1 starts on 23 February 2029; Charge 3 starts on 23 February 2030.
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