Director of Public Prosecutions (Cth) v Gorniakowski
[2021] VCC 743
•4 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01655
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JUSTIN RICHARD GORNIAKOWSKI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2021 | |
DATE OF SENTENCE: | 4 June 2021 | |
CASE MAY BE CITED AS: | DPP (CTH) v GORNIAKOWSKI | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 743 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Transmit child abuse material to self using a carriage service – Make child abuse material available using a carriage service – Possess or control child abuse material obtained or accessed using a carriage service – Offences committed over six days – Material of extremely depraved nature – Serious example of offences charged – Early pleas of guilty – Alcohol and drug abuse – Strong family support – Low risk of reoffending
Legislation Cited: Criminal Code 1995 (Cth) ss 474.22, 474.22A – Crimes Act1914 (Cth) s3LA, s16A, s17A
Cases Cited:Adamson v The Queen (2015) 47 VR 268 – R v G [2009] 1 AC 92 – Clarkson v The Queen (2011) 32 VR 361 – DPP v Garside (2016) 50 VR 800 – R v De Leeuw [2015] NSWCCA 183 – R v Hutchinson [2018] NSWCCA 152 – Minehan v The Queen (2010) 201 A Crim R 243 – R v Madex [2020] VSC 145 – DPP v Bourke [2020] VSC 130 [32] – Brown v The Queen [2020] VSCA 60
Sentence: Total effective sentence of 3 years’ imprisonment combined with a recognisance release order after serving 18 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr M Keks | Mr S Bruckard, Acting Commonwealth Solicitor of Public Prosecutions |
| For the Accused | Ms M J Brown | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1 Justin Richard Gorniakowski, you have pleaded guilty to a Commonwealth indictment containing one charge of use a carriage service to cause child abuse material to be transmitted to self, contrary to sub-section 474.22(1)(a)(ii) of the Criminal Code (Cth) (‘the Code’), one charge of use a carriage service to make available child abuse material, contrary to sub-section 474.22(1)(a)(iii) of the Code, and one charge of possess or control child abuse material obtained or accessed using a carriage service, contrary to sub-section 474.22A(1) of the Code. The maximum penalty for each of these offences is 15 years’ imprisonment.
2 I note, Charges 1 and 2 are Class 2 offences under the Sex Offenders Registration Act 2004 (Vic) (‘SORA’),[1] and are registrable offences
[1] Sex Offenders Registration Act2004 (Vic) sch 2 items 28A(iii).
3 The Commonwealth Director tendered a Prosecution Opening for Plea dated 24 February 2021,[2] which I am told by your counsel I can treat as a statement of agreed facts.
The Facts
[2] Exhibit P1.
4 On 5 November 2019, the Australian Centre to Counter Child Exploitation received information that a person with email accounts associated with you had been identified as accessing child abuse material using the online service ‘Mega’.
5 Mega is an online (or cloud) storage service. Users of Mega are able to share data stored on that service, whether individual files or entire folders, using Uniform Resource Locator (URL) links.
6 On 9 July 2020, a search warrant was executed at your residence in Hoppers Crossing. Police seized a Samsung mobile phone from under your bed.
7 During the execution of the search warrant, you told police you used the Samsung mobile phone and you did not have any devices that contained child abuse material. You complied with an order to provide passwords to your devices under section 3LA of the Crimes Act1914 (Cth) (‘the Act’).
8 Later that day, you participated in a record of interview. You made no comment and were charged at the conclusion of the interview.
9 Analysis of the Samsung mobile phone revealed the following:
(a) The application Telegram was installed on the mobile phone. You had an account with the username ‘@likerussiangirls’ and the display name ‘Bender Girl Over’. Telegram is an instant messaging and Voice over the Internet Protocol (VolP) service.
(b) The application Mega was installed on the mobile phone. You had an account on which you stored data comprising a total of about 76 gigabytes, which included 884 image files and 2,941 video files. Police downloaded the data stored on your Mega account.
10 Analysis of your Telegram and Mega accounts revealed that you had dealt with child abuse materials as described below.
Charge 1 – Use carriage service to cause child abuse material to be transmitted to yourself
11 The offending the subject of Charge 1 occurred in the course of a Telegram conversation between you and at least five other people. Between 3 July 2020 and 6 July 2020, you caused a total of 31 videos constituting child abuse material to be transmitted to yourself. You did so both by requesting child abuse material from the other participants in the conversation and by sharing 111 videos constituting child abuse material of your own with them, as follows:
(a) On 3 July 2020 at 10.15am, you sent the message ‘Trade’.
(b) At 10:16am, you received two videos from another user. The videos depicted female children aged between six months and four years being vaginally penetrated both digitally and by an adult penis.
(c) Between 10:19am and 10:22am, you sent three videos. The first video depicted a female child aged approximately eight years stripping off her clothes and inserting objects into her vagina. The second video depicted a female infant aged approximately one year being vaginally penetrated by an adult penis. The third video depicted a female child aged approximately three years standing naked and looking at the camera.
(d) At 10:23am, you received three videos from two other users. The first video depicted a female child aged between two and four years being vaginally penetrated by an adult penis. The second video depicted a female infant aged between six months and two years being held on a person’s knee while being orally penetrated by an adult penis. The third video depicted a female infant aged between six months and eighteen months being rubbed in the vaginal area by an adult penis.
(e) At 10:30am, you sent a video of a female infant aged between two and four years being anally penetrated by an adult penis.
(f) At 10:32am, you sent the message ‘Any Groups’. The prosecution alleges this was a request for material depicting group sexual activity.
(g) At 2:41pm, you received four videos from another user. The videos depicted female children aged under five years being penetrated orally, vaginally and anally either digitally or by an adult penis.
(h) On 6 July 2020 at 12:12pm, you sent a URL link to a Mega folder called ‘1’. By doing so you made the contents of the folder available to the other participants in the conversation. The folder contained 111 files, which constituted child abuse material. The material contained in the folder was classified in accordance with the Interpol Baseline 4 Tier Categorisation System (IB4TCS). 92 files were classified as Category 1 and 19 files were classified as Category 2.
(i) At 2:38pm that day, you received 22 videos from four different users. All constituted child abuse material. The videos comprised:
i. Seven videos depicting female children between one and twelve years being penetrated orally, vaginally and anally either digitally or by an adult penis.
ii. A video of a female child aged between eight and twelve years lying on her back with her vagina exposed while urinating.
iii. A video of an infant less than 12 months old being vaginally penetrated by the tongue of a female adult.
iv. Nine videos depicting male and female children aged between two and fourteen years engaged in various non-penetrative sexual acts with adults.
v. Four videos containing sexualised depictions of female children aged between eight and thirteen years.
Charge 2 – Use carriage service to make available child abuse material
12 The offending the subject of Charge 2 also occurred in the course of a conversation on Telegram. On 8 July 2020, you sent a URL link to a Mega folder called ‘12345’. That folder contained 43 files which constituted child abuse material. One image and 28 videos were classified as Category 1 in accordance with IB4TCS and 14 videos were classified as Category 2.
13 By sending the link, you made the contents of the folder available to other participants in the conversation.
Charge 3 – Possess or control child abuse material
14 The offending the subject of Charge 3 involved your possession or control of child abuse material stored both on your Samsung mobile phone itself and in your Mega account. Analysis revealed that you possessed or controlled at least 1,041 files constituting child abuse material which had been obtained or accessed using a carriage service. I sentence you on the basis of the analysis of the 1,041 files listed in the tables at paragraphs 29 and 31 of the summary of prosecution opening for plea.[3]
[3] I note there is no Commonwealth equivalent of the provisions contained in Crimes Act 1958 (Vic) s 51V which permit the use of random samples of seized material in child abuse material cases.
15 The Samsung mobile phone contained 366 files constituting child abuse material. In accordance with IB4TCS, 46 images and 69 videos were classified as Category 1 while 25 images and 226 videos were classified as Category 2.
16 The material stored on the mobile phone included the 35 files which were received and sent by you in the course of the Telegram conversation between 3 July 2020 and 6 July 2020 (Charge 1).
17 The data stored in your Mega account contained image and video files. The files were organised into 13 folders, including two folders called ‘1’ and ‘12345’ respectively, which were the folders shared by you in the Telegram conversation on 6 July 2020 and 8 July 2020. 684 files were reviewed by police. Once again, in order to avoid double punishment, this analysis did not include the files in folders ‘1’ and ‘12345’. Of the 684 files reviewed, 675 constituted child abuse material. 377 images and 172 videos were classified as Category 1 while 76 images and 50 videos were classified as Category 2.
18 On 19 April 2021, in my chambers in the presence of the informant – with the consent of the parties – I viewed what is agreed to be a representative sample of still images and video files comprising part of the child abuse material the subject of Charge 3. This material is detailed in exhibit P2. I did this because it was necessary for me to do so in order to appreciate the true nature of the material and to form an opinion regarding its degree of depravity.[4]
[4] See eg R v Jongsma (2004) 150 A Crim R 386, 404 [35] (Batt JA, Eames JA and Gillard AJA relevantly agreeing); Smit v State of Western Australia [2011] WASCA 124, [17] (McLure P, Pullin JA and Mazza J agreeing); R v Porte (2015) 252 A Crim R 294, 310-11 [76], 316–17 [114] (Johnson J, Leeming JA and Beech-Jones J agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [22] (Tate JA, Sifris AJA agreeing); DPP (Cth) v Zarb (2014) 46 VR 832, 842–3, [30] (Neave and Kyrou) (‘Zarb’); R v Leeuw [2015] NSWCCA 183, [86] (Johnson J, Ward JA and Garling J); Kenworthy v The Queen [No 2] [2016] WASCA 207, [138]–[139] (Buss P, Mazza and Mitchell JJA); R v Turvey (2017) 127 SASR 425, 455–6 [141]–[142] (Hinton J, Nicholson and Lovell JJ agreeing); R v Johnston [2020] ACTSC 46, [19]–[23] (Mossop J). Compare Zarb 853–4, [73] (Priest JA dissenting) and R v Hutchinson [2018] NSWCCA 152, [47]–[50] (R A Hulme J, Meagher JA and Button J agreeing).
19 I am aware of the need for me to retain my objectivity and sense of proportion. Nonetheless, I find that the degree of depravity of a significant volume of this material is extremely high, particularly the video files falling into IB4TCS category 1. Indeed, file 2 on the list of images I viewed[5] was quite shocking. One can barely imagine the extreme trauma the child must have gone through in the creation of this example of child abuse material, and the lasting adverse effects this is likely to have on her.
[5] See exhibit P2.
20 Moreover, by viewing the representative sample of the child abuse material I can attest to the accuracy of the descriptions contained in exhibit P2.
21 I did not view any of the child abuse material the subject of Charges 1 and 2, however, the descriptions detailed above at paragraphs 11 and 12 in relation to Charge 1, which you accept as being accurate, demonstrate the extremely depraved nature of that material. In my view, the images and videos the subject of Charge 1 fall at the highest end of IB4TCS category 1.
Victim Impact
22 There are no known victims of your offending conduct, however, there must be hundreds of sexually abused children depicted in the vile material you transmitted, made available and possessed. Child abuse material offences are not victimless crimes; children are abused and exploited in the production of child abuse material, and those who make use of the product feed upon and also encourage such exploitation and abuse. The suffering generated by this perverted industry is unimaginable.
23 In making the child abuse material available to others, you increased the number of people who would view that material, and thereby increased the victimisation of the children depicted.
24 Child abuse material is extremely harmful to the innocent victims and often causes severe and lasting adverse psychological trauma and physical effects of sexual penetration at a very young age. This is particularly so where the child abuse material depicts penetrative conduct by an adult male with a child. In this case there were images of female children as young as one year old, or even younger, being vaginally penetrated digitally and penilely.
25 In Adamson v The Queen, the Court of Appeal[6] quoted, with approval from the judgment of Baroness Hale in R v G,[7] where Her Ladyship said:
Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[6] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA)
[7] [2009] 1 AC 92, 108-9 [48]–[49]. See also Clarkson v R; EJA v R (2011) 32 VR 361, 370–1 [32].
26 Moreover, as the Court of Appeal opined in Clarkson v The Queen[8] there is a presumption of harm in cases involving child sex abuse. The court said:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[9]
[8] (2011) 32 VR 361.
[9]Ibid 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
Offence Seriousness
27 Child abuse material offences are considered especially grave by both the Courts and the legislature. These offences now carry a 15 year maximum penalty, which was increased by 50 per cent in 2010, despite only having been introduced in 2005. The amendments reflect the legislature’s recognition, as stated in the Explanatory Memorandum to the 2010 amending act, ‘that the Internet is creating ever greater demands for new material of ever greater levels of depravity and corruption.’[10] This is certainly demonstrated by the vile material you were transmitting and making available using the Internet in Charges 1 and 2 of this indictment.
[10] Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 81. See DPP (Cth) and DPP v Garside (2016) 50 VR 800, 808 [19] (Redlich and Beach JJA) (‘Garside’); DPP (Cth) v Watson (2016) 259 A Crim R 327.
28 The maximum penalty provides a yardstick against which a sentence is to be considered[11] and indicates the seriousness with which the Parliament, on behalf of the community, views the offences.
[11] Markarian v The Queen (2006) 228 CLR 357, 372.
29 Likewise, the courts have made clear that ‘the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.’[12] As in the present case, ‘The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.’[13] Your counsel accepted general deterrence is ‘the paramount sentencing consideration for child pornography offences’.
[12] R v Porte (2015) 252 A Crim R 294, 307 [59] (Johnson J, Leeming JA and Beech-Jones J agreeing) (‘Porte’). See also DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA, Redlich JA and Williams AJA agreeing) (‘D’Alessandro’); Edwards v The Queen [2013] VSCA 188 [22] (Osborn JA, Nettle and Coghlan JJA agreeing); Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [40] (Tate JA, Sifris AJA agreeing); Garside 808–809 [19]–[21].
[13] Fitzgerald v The Queen [2015] NSWCCA 266 [33]. (Hoeben CJ at CL, Price and Button JJ agreeing).
30 In DPP (Cth) and DPP v Garside (‘Garside’), Redlich and Beach JJA observed:
The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation, is grave. It must ordinarily be the subject of substantial punishment.[14]
[14] Garside 809 [22] (citations omitted).
Later their Honours said:
What is clear from all the authorities is that access to child pornography[15] is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of imprisonment will ordinarily be expected for such offending.[16]
[15] ‘Child pornography material’ was the term previously used in the legislation to describe what is now termed ‘child abuse material’. See amendments made to s 473.1 of the Criminal Code (Cth) by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) s 29.
[16]Ibid 819 [62].
31 In your case, you not only caused child abuse material to be transmitted to yourself (Charge 1), you made it available to a number of depraved individuals through a nefarious Internet network (Charge 2), while possessing a large amount of other child abuse material in the form of images and video files (Charge 3).
32 The general sentencing principles applicable to offending of this nature are conveniently summarised by the New South Wales Court of Criminal Appeal in R v De Leeuw,[17] which were quoted with approval in Garside.[18] Johnson J, with whom Ward JA and Garling J agreed, summarised the relevant principles as follows:
[17] [2015] NSWCCA 183.
[18] Garside 810–811 [25]. See also D’Alessandro 483 [21]; DPP (Cth) v Cooper [2021] QCA 4 [8] (Morrison JA, Philippides JA and Crow J agreeing) (‘Cooper’).
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i)the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii)the number of items or images possessed;
(iii)whether the material is for the purpose of sale or further distribution;
(iv)whether the offender will profit from the offence;
(v)in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi)the length of time for which the pornographic material was possessed.
(c) General deterrence is the primary sentencing consideration for offending involving child pornography.
(d) Less or limited weight is given to an offender’s prior good character.
(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.
(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.[19]
[19] [2015] NSWCCA 183 [72] (Johnson J, Ward JA and Garling J agreeing) (citations omitted).
33 In Garside the Court further observed that:
The increasing risk that the international child pornography industry poses, that the possession of child pornography material creates a market for the continued corruption and exploitation of children and that those who possess such material, whether for profit or not, are more than mere passive recipients of material but are active participants in the market, must remain at the forefront of the sentencing task in order that general deterrence, in particular, is given its necessary weight.[20]
[20]Garside 821 [71] (citations omitted).
34 In R v Hutchinson,[21] R A Hulme J, with whom Meagher JA and Button J agreed, set out a revision of ‘the list of factors that may bear upon the assessment of the objective seriousness of offences concerning child pornography and child abuse material provided in Minehan v R.’[22] This revised list is as follows:
[21] [2018] NSWCCA 152.
[22] (2010) 201 A Crim R 243.
1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
11. Whether the offender acted alone or in a collaborative network of like-minded persons.
12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.[23]
[23] [2018] NSWCCA 152 [45]. See also DPP v Smith [2010] VSCA 215 [23] (Nettle JA, Harper and Hansen JJA agreeing) (‘Smith’), approved and extended to offences of accessing and transmitting child abuse material in Zarb 842 [27] (Neave and Kyrou JJA).
35 Your offending in relation to all three charges is objectively serious. While the offending overall lasted only some six days, in light of the grave nature of many of the images and video files you transmitted, made available and possessed, I accept the Commonwealth Director’s submission that each offence is a serious example of the offence charged, and together the offending constitutes a very serious course of conduct in which you dealt with and distributed child abuse material.
36 The material was particularly grave in nature, largely depicting children under 13 years old (and as young as six months old) being subjected to sexual abuse of a very serious kind. Your counsel conceded on your behalf the very young age of some of the children depicted in the material aggravates the gravity of these offences.
37 I agree with the prosecution’s submission the gravity of the content is a major factor in making these serious examples of the offences charged in Charges 1 and 2, while another aggravating feature of those offences is what the prosecutor referred to as your ‘active trading conduct’. By this he meant your conduct involved ‘a higher level of moral culpability’ than simple filesharing with others online because you made ‘active requests to trade … with specific people online’.
38 I also agree that an aggravating feature of the offending comprised in Charge 1 was that you caused 31 videos constituting child abuse material to be transmitted to you by yourself transmitting four videos and making available 111 videos, all of which constituted child abuse material, to other participants in the conversation.
39 Similarly, I accept that it is an aggravating feature of Charge 2 that you made the 43 files the subject of that count available in the expectation that the other participants would respond in kind.
40 By your active participation in the exchange of child abuse material, you contributed to the market for this appallingly wicked and depraved material, you perpetuated its dissemination and you thereby contributed to the further exploitation of the innocent victims of this nefarious activity.
41 By so doing, you gained a benefit by trading in this manner in that you received videos and images to view yourself and, no doubt, trade with others online. While there is no suggestion you financially profited from your crimes, I agree with the Commonwealth Director’s submission that it is not mitigatory that you did not otherwise profit from or pay for the child abuse material.[24]
[24] Cooper [8](e).
42 So far as Charge 3 is concerned, I agree with the Commonwealth Director’s submission that having regard to ‘the quantity, motive, the degree of organisation involved in the collection and the nature and content of the material’, this is a serious example of that offence.
43 I also accept the Commonwealth Director’s submission that overall your offending constitutes a very serious course of conduct in which you actively traded and stored a significant quantity of child abuse material, much of which ‘depicted abhorrent exploitation of very young children’ and that each charge ‘represents multiple instances of criminality.’
Personal Circumstances
General background
44 You were born in October 1972 and are now 48 years old. You were aged 47 years at the time of the offending.
45 You gave a personal history to Dr Karen Owen, a consultant forensic and clinical psychologist, who interviewed you on 11 November 2020 for three hours via Telehealth at the request of the Department of Health and Human Services, who requested Dr Owen assess whether or not you posed a risk of sexual harm to your two youngest daughters.[25]
[25] Her ‘Forensic Psychosexual Risk Assessment’ dated 15 February 2021 is exhibit D4.
46 You told Dr Owen your family life was ‘alright’. You grew up with two younger sisters. Your father, who is of Polish descent, served in the army. He worked shift work and was often sleeping during the day.
47 You described your father as very strict and your upbringing as extremely authoritarian and regimented. You lived in a strict routine and on occasions your father whipped you with a stick. Despite this, you consider you grew up in a loving family environment. However, you were the one who was always in trouble.
48 You told Dr Owen your mother was an alcoholic. You had to carry her to bed every night. You were somewhat resentful towards your mother, given that you had to take care of her and be responsible for your two younger sisters. You also resented your father for shifting his responsibility for your mother’s and sisters’ well-being to you.
49 You reported being a sexual abuse survivor from the age of 12 to 14 years, being assaulted 10 times. The abuse involved physical force by an older boy and his brother who lived in a nearby house. The boy told you that your father had molested him and his brother, and the older boy ‘roped [you] into certain things’. This involved oral and manual sex. You never reported these assaults to your family or police.
50 This coercive sexual contact was your first sexual experience. While at the time you considered it was ‘just fun’, you now consider from that point on your sexual appetite changed the way you perceived things. You would initiate sexual contact with others, usually with those younger than yourself. You told Dr Owen this ‘felt good’. You said that prior to this incident you were extremely naïve and had been sleeping in a single bed with your sister because there were only two beds in the house.
51 Your parents are both still alive. Your mother now suffers from motor neurone disease and your father has heart problems. Your mother takes prescription medication to excess and on one occasion she overdosed on sedatives which placed her in a coma for 15 hours. You had to stay with her and look after her. You reported your father continues to rely on you to assist your mother and confides in you about your mother’s drug use.
52 During your schooling you always felt younger and did not fit in with your peers. You were bullied for not being in uniform owing to poor care by your mother. You said you had a good circle of friends and being at school was better than being at home with your mother.
53 You consider yourself to be somewhat immature to this day and describe yourself as a bit of a risk-taker. You question whether you might have had attention deficit hyperactivity disorder as a teenager.
54 In Year Nine, you moved to an all-boys technical school for two years. You continued at school until Year 11. You were distracted during your final year and did not focus on schoolwork but acted as the class clown. You said you got into more than your fair share of trouble.
55 After leaving school you commenced employment as an administration clerk with the Australian Wheat Board. Apparently, you could not stand the foreman and were always in trouble. You acknowledged you had a problem with people in authority.
56 You subsequently worked in abattoirs, factories, as a truck driver, on a chicken farm, in a bar, as a fruit picker, driving a forklift and as a waiter and in a market garden. You worked at the Toyota factory for five years but left because of conflict with your supervisors and co-workers. During this period, you would go to work, but you were quite miserable. Your last job was as a cleaner, where you worked for two and a half years.
57 About four years ago you ceased employment and became a full-time carer for your children, while your wife worked. The children needed to be cared for six hours a day and the cost of childcare meant it was no longer financially viable for you to continue working. You would have preferred to remain working. You cared for the children, did all the cooking, shopping and housework.
58 You were criticised by your wife’s family for giving up work to care for your children. You considered you had a good work ethic and resented these criticisms, which made you feel devalued. You told Dr Owen, being at home caused you to increase your dependence on alcohol.
59 You have had two significant age-appropriate relationships: a marriage-like relationship between 1999 to 2010 that resulted in three children, and your relationship with your wife which began in 2012 and resulted in two children. The children from both relationships are now aged 23, 22, 18, 11 and 8.
60 As a result of being charged with the present offences, you went from being the primary carer of your two youngest children to being forbidden from seeing them. You had to move into a motel, where you lived for at least the five months preceding your interview with Dr Owen in November 2020. You were initially denied all contact with your youngest daughters apart from video calls on Fathers’ Day and on each of their birthdays. Following Dr Owen’s risk assessment, at some time prior to being remanded for sentence by me you were permitted supervised access with them for three hours on Mondays, Wednesdays and Thursdays and seven hours on Sundays.
61 Your wife, Vicky Gorniakowski, attended the plea hearing in this matter in person and gave evidence on your behalf. Your mother, father and eldest child attended the plea hearing via WebEx.
62 Your wife wrote a supportive letter to the Court.[26] She said you have been married for seven years and been together for almost 12 years. You have two children who are aged 8 and 11. She is aware of the offences you have committed. She said the revelation of your offences came as a ‘massive shock’ to her and your family. You were the primary caregiver in the family and your separation from the family has meant a huge adjustment for the household.
[26] Exhibit D3.
63 Before you were remanded in custody at the end of the plea hearing, she spoke with you daily. She has spent the last eight months working through the changes with you. She says you ‘have done a lot of work on [your] mental health and wellbeing throughout this time’. She still loves you and remains supportive of you.
64 Monique Gorniakowski, your eldest daughter, also wrote a letter to the Court in your support.[27] She is aware of the offences you have committed and said she has seen ‘many good changes’ in you since your arrest. She said you have always been loving, caring and supportive towards her and all of her four siblings. She has always been close with you and you were by her side since the day her son was born. She is thankful and proud of you and forgiving for what you have done.
[27] Exhibit D2.
65 So far as your attitude to your offending is concerned, you told Dr Owen it was your ‘own stupid mind’ and you needed to be punished for it. You said you put yourself in this position and never want to do it again and you want to be a better person.
66 At the time of the offending your 18-year-old son had moved into your and your wife’s home and your daughter was living in a caravan in the yard. Your son was a heavy cannabis user and you and he ‘started partying together’. This led you to increase your cannabis and alcohol consumption.
67 You told Dr Owen that at that time you were going through a lot of stress and were drinking excessively and suffering from depression. In August your closest male friend died of a heart attack and it was a combination of all these factors that you considered led to you offending.
68 In summary, you attribute your offending conduct to alcohol abuse, which commenced many years ago following your separation from your former partner, and the great deal of family stress, which occurred immediately prior to the present offending.
Prior criminal history
69 You have a prior criminal history which the Commonwealth Director concedes is ‘dated and has limited relevance’. Your prior criminal history comprises five appearances between March 1990 and July 2008. The offences include a large number of dishonesty offences, five offences against the person and some drug and driving offences. It is noteworthy there are no offences involving sexual impropriety, and your last offence was dealt with some 13 years ago.
70 Whilst I cannot sentence you on the basis you are a person of otherwise good character, considering the passage of time since your last conviction, I accept your prior criminal history should be given little weight.
Alcohol and drug abuse history
71 Your drug and alcohol history were described by Dr Owen in her assessment report. I have also had regard to the evidence your wife gave at the plea hearing regarding your history of alcohol consumption and the ‘huge changes’ she has seen in you since your offending was discovered, including your total abstinence from alcohol.
72 You commenced cannabis use at the age of 16 and effectively hid your use which continued up until the age of 35 years.
73 You started drinking alcohol heavily after the major breakup of your relationship with your ex-partner with whom you had three children. At this time, you moved from cannabis to alcohol abuse. During this time, you were living on the streets and your drinking became worse with ever increasing tolerance to alcohol and consequent greater consumption. You were drinking until you blacked out and you would blackout nightly.
74 You reported you had been drinking heavily for about the last 15 years. You would start drinking at 3pm, although you would not drink alcohol during the days when you looked after the children. After your wife returned home at 3pm you would start drinking hard and would stay up until 2am. You would still be able to get the children up and ready for school. At this time, you were drinking approximately 30 cans of beer in any session of drinking. You would drink fast and at times for hours at a time and your whole life became concerned with obtaining alcohol.
75 You told Dr Owen when you fell into a state of depression the drinking worsened. Your alcohol consumption continued when you remarried and increased again when you became a full-time career for the children. You said you had never been an aggressive drunk but, rather, you would just fall asleep. Nonetheless, the alcohol consumption just continued with you being stuck in a pattern especially when you were not working as much, you would just consume more alcohol.
76 Dr Owen notes you entered drug and alcohol rehabilitation and detoxification lasted one week after which you had ongoing counselling.
77 I have had regard to the contents of a letter from your Alcohol and Other Drug (AOD) counsellor, Maria Sicura, dated 9 December 2020.[28] She confirms you referred yourself for AOD counselling to Western Health Drug Health Services in August 2020, shortly after your arrest. You were admitted to the residential detox unit and completed a seven-day detox, after which you remained engaged in AOD counselling via telephone.
[28] Exhibit D6.
78 Ms Sicura described you presenting as ‘engaged and polite and displaying insight into the circumstances and triggers for [your] past substance use’. She said you worked well on your sobriety after rehabilitation and you were working on ‘relapse prevention strategies, affect regulation, and consequential thinking strategies’.
79 Ms Sicura formed the opinion you expressed remorse for poor behaviour and choices, and that you reported a total abstinence from alcohol and drugs. You reported that you had built sufficient resilience to go on with your life without substances. After eight counselling sessions, you successfully exited from the program.
80 Your counsel was instructed you have remained abstinent from alcohol since August 2020. Your wife’s evidence at the plea hearing confirms this. This compares very favourably with the preceding 15 years where the longest period of time you remained abstinent from alcohol was two days.
Mental and physical health
81 Dr Owen administered a number of psychometric tests and formed a number of clinical opinions as a result of her assessment of you.[29] Her focus was on a risk assessment and not on a mental state examination. She noted average cognitive capacity, symptoms of distress, anxiety and depression, very poor self-esteem, ‘acceptable insight’, ongoing issues with abuse trauma, difficulties with impulse control, lack of self-discipline and aimlessness, and the possibility of you having a borderline personality disorder, but not at a clinical level.
[29] See Exhibit D4.
82 Dr Owen opined:
Mr Gorniakowski presented with considerable mental health instability. He reported being diagnosed with bipolar depression and his presentation was consistent with a depressive presentation. There has, however, been considerable improvement reported in his cognitive capacity following the cessation of alcohol consumption.
…
Mr Gorniakowski reported sexual contact with an older peer around the age of 12 years resulting in early sexualisation. It appears this has established an entrenched sexual focus for Mr Gorniakowski on younger children and misconceptions about early sexual contact with children with him saying, "always thought life was like that". This experience also appears to have led to Mr Gorniakowski experiencing interpersonal difficulties with his peers, unable to fit in to social groups and believing he was always being somewhat immature. It is evident from his AASI testing that [h]is early sexualisation has led to considerable sexual confusion and dysfunction.
83 Ultimately, Dr Owen concluded
It appears Mr Gorniakowski's offending with the use of child exploitation material occurred over a short period of time … in context of substance abuse, depression, relationship stress and other major life stressors. This also occurs in the context of fairly significant sexual dysregulation and sexual trauma-based issues.
At this time, based upon the information gathered during this assessment, Mr Gorniakowski represents a Low Risk of sexually abusive harm should he have the children in his care. … It appears Mr Gorniakowski's offences are best characterised by transient and isolated periods of offending in highly contextualised circumstances in the presence of extreme destabilised dynamic risk factors. There is no evidence at this point in time to suggest Mr Gorniakowski represents direct risk of sexual violence towards his children.
…
Mr Gorniakowski is currently assessed as a Low Risk of committing further sexual offences (non-contact offences).
84 Dr Owen recommended your engagement with a forensic psychologist with experience in sexual offender treatment is necessary to ‘further explore [your] sexual profile and sexual compulsiveness’.
85 Since August 2020, you have engaged in treatment with Ms Bea Raymond, a forensic and occupational psychologist, attending 12 sessions prior to being remanded in custody by me. She provided a report dated 11 March 2021.[30] She reports a treatment plan was developed in August 2020 specifically to address anxious symptomology and offence related issues. Given your then circumstances, the treatment plan was somewhat reactive to your immediate needs, initially focused on addressing your alcohol intake. She diagnosed a severe alcohol use disorder in early remission.
[30] Exhibit D5.
86 Over the seven months preceding her report date, your capacity to manage negative emotionality has markedly improved, largely due to you participating in a residential alcohol rehabilitation treatment program. Since completing this detoxification program in September 2020, you have reported no relapse and have sustained a strong motivation to continue to abstain from alcohol.
87 Treatment has provided you with support to develop skills in managing negative emotionality. Ms Raymond noted your history of depression and anxiety, which undermined your capacity to manage life stressors. While you continue to present with low self-esteem, you have established a level of emotional resilience that continues to evolve.
88 Ms Raymond observed that after having to vacate the family home due to involvement of child protection officers, you have resided in three different boarding houses. While this has had a destabilising impact on you generally, the strategies you have developed to manage periods of hopelessness and helplessness have been noticeably and appropriately addressed.
89 Factors specifically related to your offending behaviour were not addressed during this treatment period. Ms Raymond recommended upon sentencing, you be assessed for participation in offence specific and related intervention.
90 You counsel does not submit that any Verdins principles[31] are engaged in your case.
[31] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA). See also Brown v The Queen [2020] VSCA 212.
91 In so far as your physical health is concerned, your counsel submitted that you suffer from chronic back pain. She submitted that you also experienced a cardiac arrest in 2017 and spent several days at the Alfred Hospital. You underwent a vasectomy around 2015 and 2016 and experienced complications following the procedure that affected your ability to sustain an erection
Mitigating Circumstances
92 You pleaded guilty to the present offences at the earliest reasonable opportunity. I accept your pleas have utilitarian benefit, particularly in the COVID-19 environment, and they indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
93 Although during the execution of the search warrant on 9 July 2020, you falsely told the police that none of your devices contained child abuse material, you were cooperative and supplied the police with the names and passwords of internet accounts.
94 Based on the material before me, particularly the opinion of Ms Sicura, your wife’s supportive letter and aspects of Dr Owen’s report, I am prepared to sentence you on the basis you have insight into the seriousness of your offending conduct and are truly remorseful.
95 You instruct your counsel the offending occurred in the context of you drinking alcohol with a consequent significant lowering of your inhibitions. I must a admit a degree of scepticism regarding this explanation. Nonetheless. it is to your credit that you have actively engaged in alcohol and drug counselling and psychological treatment.
96 I accept you are ‘disgusted and ashamed’ of your conduct. I also accept you have been abstinent from alcohol and you are developing some insight into the reasons for your offending on this occasion. Moreover, you have sought psychological counselling to assist you in dealing with the stressors which contributed to the present offending and you have the protective factor of ongoing support from your wife. However, to date you have not engaged in any offence specific treatment.
97 I accept your prospects of rehabilitation would be enhanced if you were to participate in offence-specific treatment, such as some form of sex offender treatment program. Accordingly, while I commend you for your efforts to date in advancing your rehabilitation, which are to be encouraged, at this stage I can only adopt a cautious approach to your ultimate prospects of rehabilitation, as they will ultimately depend on your successful completion of appropriate treatment.
98 Your risk of reoffending, albeit relatively low-risk, means I must give some weight to specific deterrence and protection of the community in sentencing you.
99 The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[32]
[32] R v Madex [2020] VSC 145 [52].
(b) The inherent utilitarian value of a guilty plea is greater during the pandemic.[33]
[33] DPP v Bourke [2020] VSC 130 [32].
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[34]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
[34] Brown v The Queen [2020] VSCA 60 [48].
100 However, there is no evidence before me to indicate you will suffer any particular additional custodial hardship over and above that of the average prisoner as a result of COVID–19.
Application of Sentencing Principles
101 I must sentence you in accordance with the relevant provisions of Part 1B of the Act and, in particular, the provisions of s16A.
102 Pursuant to s16A(1) of the Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. In determining the appropriate sentence, I must have regard to the matters set out in s16A(2) of the Act, and any other matters, insofar as they are relevant and known to me.
103 Section 17A(1) of the Act provides that I shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences, I am satisfied no other sentence is appropriate in the circumstances.[35]
[35] Similarly, see Sentencing Act 1991 (Vic) ss 5(3).
104 Ordinarily, a person being sentenced for the present offences can expect a term of imprisonment to be imposed.[36] Moreover, the Act requires a court to be satisfied that exceptional circumstances exist before a person being sentenced for a Commonwealth child sex offence can be released immediately on a recognizance release order.[37] Your counsel conceded that exceptional circumstances are not present in your case.
[36] D’Alessandro; Smith; DPP (Cth) v Guest [2014] VSCA 29; Zarb; Garside.
[37] Crimes Act 1914 (Cth) (‘the Act’) s 20(1)(b)(ii).
105 The Crown submitted that owing to the inherent seriousness of the offences, the gravity of your offending conduct in relation to each charge, and the prominence of general deterrence for this kind of offending, significant terms of imprisonment to be immediately served are the only appropriate sentencing dispositions on each charge.
106 Your counsel submitted that a term of imprisonment is the appropriate disposition in your case. She also submitted that a recognisance release order is the appropriate mechanism for your sentence. The Commonwealth Director did not submit that such a disposition was not open in this case.
107 The Commonwealth Director submitted that a measure of cumulation between sentences was appropriate as each offence represented distinct criminal conduct. I accept this submission. Nonetheless, the totality principle requires there be a significant measure of concurrency to reflect the overlapping nature of the offending conduct, the short period of six days over which the offences were committed and the same motive and general circumstances being common to all offences.
108 Section 16A(2AAA) of the Act provides that, in determining the sentence to be passed on any person for a Commonwealth child sex offence, the Court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate to impose any conditions about rehabilitation or treatment options. Moreover, in determining the length of any sentence or non-parole period the court should include sufficient time for the person to undertake a rehabilitation program.
109 However, as the Commonwealth Director correctly observed, that section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence.[38]
[38] The Act s 16A(1).
110 I have had regard to current sentencing practices in relation to the offences before me in light of the decisions of the High Court of Australia in DPP v Dalgliesh(a Pseudonym)[39] and The Queen v Pham.[40]
[39] (2017) 91 ALJR 1063.
[40] (2015) 256 CLR 550, 557 [23] (French CJ, Keane and Nettle JJ).
111 The Commonwealth Director referred me to the cases of Burbridge v The Queen,[41] which was submitted to be more serious than your case, Lyons v The Queen[42] and Wagner v The Queen[43] as being relatively comparable cases.
[41] [2016] NSWCCA 128.
[42] [2019] VSCA 242.
[43] [2018] NSWCCA 124.
112 It is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases, given the wide range of offending conduct that can constitute the offences for which you fall to be sentenced and the myriad of personal circumstances pertaining to individual offenders. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
113 Ultimately, after having considered all other available sentences, I am of the opinion that the only appropriate sentence necessary to achieve the purposes for which these sentences are imposed is a period of immediate imprisonment with a recognizance release order. My reasons for that conclusion are contained in these reasons for sentence.
114 I note that Charges 1 and 2 are Class 2 offences for the purposes of the SORA. Pursuant to section 34(1)(b) of the SORA, you will be required to comply with the reporting requirements under the SORA for 15 years.
Mr Gorniakowski
On Charge 1, use a carriage service to cause child abuse material to be transmitted to self, you are convicted and sentenced to a term of imprisonment of 2 years. That sentence is to commence today.
On Charge 2, use a carriage service to make available child abuse material, you are convicted and sentenced to a term of imprisonment of 18 months. That sentence commences on 4 April 2022, resulting in a cumulation of 4 months on Charge 1.
On Charge 3, possess or control child abuse material obtained or accessed using a carriage service, you are convicted and sentenced to a term of imprisonment of 2 years. That sentence commences on 4 June 2022, resulting in a cumulation of 8 months on Charges 1 and 2, making a total effective sentence of 3 years’ imprisonment.
I direct that you are to be released after serving 18 months of the sentences on Charges 1, 2 and 3, upon your recognisance in the sum of $2000 and on the following conditions:
(1) That you be of good behaviour for a period of 18 months following your release.
(2) That you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 18 months.
(3) That you are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
(4) That you are to report to the Werribee Justice Centre at 87 Synnot Street, Werribee Victoria 3030, by 4pm on the second day after your release from custody.
(5) That you are to report to and receive visits from a community corrections officer or officers.
(6) That you are to notify an officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change.
(7) That you are not to leave Victoria except with the permission of an officer at the specified community corrections centre.
(8) That you are to obey all lawful instructions and directions of community corrections officers.
I must now explain these orders to you.
The effect of these orders is that you will serve 18 months of imprisonment before you are released to continue your sentence in the community. On Charges 1, 2 and 3, you are released after 18 months on what is called a recognisance release order. This means that you will be released from prison in 18 months’ time and serve the remainder of your imprisonment sentence (18 months) in the community, provided that you are of good behaviour during that time and comply with all the other conditions of the recognisance release order.
If you fail to comply with the recognisance release order, then you will be brought back before the Court to be dealt with for the breach, and you may be required to serve the remainder of your imprisonment sentence in custody.
I declare 72 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
Pursuant to the provisions of the Sex Offenders Registration Act 2004 (Vic) I order that you comply with the reporting provisions of that Act for a period of 15 years commencing today.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state the sentences I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 4 years’ imprisonment with a non-parole period of three years.
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