Director of Public Prosecutions (Cth) v James

[2022] VCC 327

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

CR 21-02575

COMMONWELATH DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT EDWARD JAMES

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2022
DATE OF SENTENCE:	11 March 2022
CASE MAY BE CITED AS:	DPP (Cth) v James
MEDIUM NEUTRAL CITATION:	[2022] VCC 327

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW – Sentencing.

Catchwords:  Plea of guilty - Possess or control child abuse material obtained or accessed using a carriage service – Vulnerabilities of the accused could make prison more burdensome - COVID-19 pandemic.

Legislation Cited: Criminal Code (Cth) s 474.22A(1); Crimes Act1914 (Cth) ss 3E, 16A, 17A(1), 20(1)(b)(ii); Sex Offenders Registration Act 2004; Sentencing Act1991 s 6AAA.

Cases Cited:DPP (Cth) v D’Alessandro (2010) 26 VR 477; R v De Leeuw [2015] NSWCCA 183; DPP (Cth) v Garside (2016) 50 VR 800; Worboyes v The Queen [2021] VSCA 169.

Sentence:Imprisonment for 18 months, to be released forthwith on a recognizance of $3000 to be of good behaviour for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dinola	Commonwealth Office of Public Prosecutions
For the Accused	Mr M. Stanton	Marco Man & Associates

HIS HONOUR:

Introduction

1Robert Edward James you have pleaded guilty to one charge of possess or control child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment.

2You have no prior criminal history.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4You were aged 30 years at the time of your arrest. On 2 March 2021, the Australian Federal Police Joint Anti Child Exploitation Team received information that the user “robjames2020” had uploaded material onto the Google platform between 7 July 2020 and 15 November 2020 which was identified as child abuse material.

5Investigations by the Australia Federal Police identified you were the likely owner of the account and the uploads occurred at your residence at the time, at 2/322 Larter Street, Golden Point, Victoria 3350.

6On 15 April 2021, a search warrant pursuant to section 3E of the Crimes Act1914 (Cth) was executed at your residence. During the execution of the search warrant a number of electronic devices were located within the premises. These devices below were seized during the execution of the search warrant:

Exhibit	Description
3624388/001	Apple iPhone 12, IMEI 356826110417219
3624388/002	Apple iPhone SE, IMEI 356488108674620
3624388/003	Apple watch
3624388/004	Apple iPad 4 Air, IMEI 356767110580986
3624388/005	DVD labelled “Kissing Galleries”

7You took part in a Record of Interview. During the Record of Interview you said the following:

a.That you use 0457413458 as your personal mobile phone;

b.That you use 0437928816 as a work phone;

c.Your phones have different applications on them;

[email protected] is your email account;

e.Nobody else uses your google account;

f.You have visitors maybe once a fortnight;

g.Those visitors don’t use your online platforms;

h.Between 7 July and 15 November 2020, you couldn’t recall having visitors;

i.The VLC application is on your phones mainly to watch videos that only can be played using that application;

j.Content to be played through VLC needs to be stored on a phone;

k.You didn’t store child abuse material in the library on your personal phone; and

l.You don’t know why child abuse material is in the library on the phone.

8Between 19 April and 4 June 2021, the seized devices belonging to you were examined. During the examination, child abuse material was found on three of  your devices. A total of 52 video files and 10 image files categorised as child abuse material were located across the three devices.

9Your Apple iPhone 12 contained nine images classified as child abuse material including:

Image	Description
1	Male child masturbating
2	Male child under 13 performing oral sex on another male
3	Unknown aged male having anal sex with male child
4	Male child having anal sex with another male child
5	Male child bent over holding genitals with legs spread and open anus focused on
6	Two male children in naked in shower. Photo focused on genitals
7	Female child inserting object in female child’s genitals
8	Male child laying on couch with another male child with semi erect penis exposed.
9	Male child under 18 masturbating

10Your Apple iPhone 12 contained 20 videos classified as child abuse material including:

Video	Description
1	Male child having sex with another male child
2	Male child under 13 performing oral sex on male
3	Male child masturbating
4	Male child masturbating and inserting fingers in anus
5	Two male children under 13 performing sex acts on selves before performing sex acts on each other in bath
6	Female under 13 holding object while another female under 13 simulates sexual intercourse with object
7	Two male children under 13 performing sex acts on themselves
8	Male child masturbating
9	Male performing sex acts on a male child before having anal sex
10	Adult male and male child performing oral sex on each other
11	Two male children performing oral sex on each other before having anal sex
12	Male child under 18 masturbating
13	Male child under 18 masturbating
14	Three male children under 18 masturbating
15	Male child under 18 masturbating
16	Male child under 18 masturbating
17	Male child under 13 masturbating
18	Four male children under 18 masturbating
19	Male child under 18 masturbating
20	Male child under 18 performing oral sex on adult male while being masturbated by adult male

11Your Apple iPhone SE contained one image constituting child abuse material including:

Image	Description
1	Two males under 16 in shower naked

12Your Apple iPhone SE contained 23 videos constituting child abuse material including:

Videos	Description
1	Male child under 13 having anal sex with another child
2	Male child under 16 masturbating
3	Two male children under 16 masturbating
4	Two male children under 16 masturbating
5	Two male children under 13 masturbating
6	Male child under 16 masturbating
7	Two males under 16 having anal sex
8	Male having anal sex with male child under 18
9	Male masturbating behind male child under 16
10	Male child under 16 performing oral sex on male child under 16
11	Male child under 16 performing oral sex on male
12	Two males under 16 performing sex acts on each other
13	Male child under 13 performing oral sex on male child under 16
14	Male child under 18 masturbating male child under 18
15	Male child under 13 masturbating a male child under 13
16	Male child under 18 having anal sex with another male under 18 who is masturbating
17	Male child under 18 masturbating
18	Male child under 18 masturbating
19	Two male children under 13 masturbating
20	Two male children under 18 performing oral sex on each other
21	Male child under 18 masturbating
22	Two male children under 13 masturbating
23	Two male children under 18 naked in shower

13Your Apple iPad contained nine videos constituting child abuse material including:

Videos	Description
1	Two male children under 16 rubbing penises on each other before one child performs oral sex on the other child
2	Three male children under 16 masturbating themselves before one of the group masturbates another
3	One male under 18 and one male under 16 masturbate each other before male under 16 performs oral sex on other male
4	Male children between 13 and 18 performing various sex acts on each other
5	Male child under 13 inserting pencil in anus and masturbating
6	Male child under 18 masturbating
7	Two male children under 13 masturbating
8	Two male children under 18 performing oral sex on each other before having anal sex
9	One child under 13 performing oral sex on male over 18

Nature and gravity of the offending

14The charge to which you have pleaded guilty relates to the possession or control of a total of 52 video files and 10 image files of child abuse material that was spread across three devices, as outlined above. The offending is limited to a single date being 15 April 2021.

15In assessing the nature and gravity of the offending in this instance, what may be taken into account is the nature and content of material, the number of items possessed, whether the items possessed were for the purpose of sale or further distribution, and whether there was profit from the offending.[1] It is not suggested in this case that the items you possessed were for profit or further distribution.

[1] DPP (Cth) v D’Alessandro (2010) 26 VR 477, [21]; R v De Leeuw [2015] NSWCCA 183, [72].

16Ms Dinola, who appeared on behalf of the Commonwealth Director of Public Prosecutions, in oral and written submissions submitted that your offending is inherently serious which is undoubtedly correct. While the videos and other images were not categorised under the previous categorisation system, it was submitted that they generally fell within categories 1, 2 and 3 (where the higher categories included more serious examples of child abuse material). Nonetheless, it was submitted that the description of the images as detailed in the prosecution opening are depraved and clearly do not fall within the lowest category. It was also submitted that the nature of the material and the amount possessed is indicative of a developed interest and it can be inferred that you were motivated by sexual gratification. In that regard I note that you have admitted to your psychologist that your offending was indeed motivated by your own sexual gratification.

17In DPP (Cth) v Garside,[2] the Court of Appeal stated that ‘access to child pornography is regarded as very serious morally depraved conduct and is harmful to children. It is not a victimless crime as children are abused in order to supply the market’.[3] In your case, the amount of images and videos possessed, while not in the higher amounts that are commonly found, in my view still represents a relatively serious example of possession of child abuse material.

[2] (2016) 50 VR 800, [62].

[3] D’Alessandro, [23].

Personal circumstances

18You are 31 years of age.

19You grew up on a sheep and wheat farm in the Mallee, in country Victoria. You were born with a tongue-tie and required speech therapy from the age of three. You found your early school years stressful and were slow to develop, requiring you to repeat a year in primary school. You also struggled in high school. You were at a rural school where there was a large focus on sport however you did not have any interest in sporting activities. As such you were teased and generally found school difficult. When you came out at school you continued to struggle fitting in and your parents decided to send you to Damascus College in Ballarat in Year 11.

20Following school you attended Federation University TAFE and completed a light and sound course. You also became involved in theatre, joining the Creswick theatre group. You commenced a teaching degree to enable you to teach drama however the pandemic made your study difficult and you eventually lost interest. You are currently a duty manager at a local supermarket.

21You have remained involved in the Catholic church and have attended a number of World Youth Day events in several different countries.

22A report prepared by Shealyn Jeffrey, psychologist, dated 24 February 2022 was tendered on the sentencing application and at the plea hearing. At the time of the writing of the report, Ms Jeffrey had conducted two counselling sessions with you. Ms Jeffrey conducted a number of psychometric tests and prepared a treatment plan directed specifically at addressing factors relating to your offending. Ms Jeffrey is of the view that you do not present with any psychiatric concerns, but did acknowledge that you disclosed a pattern of regular methamphetamine use recommending assessment and treatment.

23At the plea, a second report prepared by Ms Jeffrey dated 8 March 2022 was tendered. In the second report Ms Jeffrey provides further information and opinion. Ms Jeffrey is of the view that you displayed poor insight in relation to your offending and that your distorted thinking provided a mechanism that alleviates you from having to take responsibility for your behaviour. As such Ms Jeffrey was unable to predict with any certainty at this stage, whether you would engage in this type of offending again.

24In the second report Ms Jeffrey makes reference to anti-social peers in the context of drug use. She also makes reference to sharing your interests in child abuse material with others. That said, while the evidence suggests that you may have discussed child abuse material with others there is no evidence that you physically shared or distributed the material in your possession.

25While drug use in the past has been identified as a concern, there is no evidence that your drug use has in any way motivated your offending but was rather part of a lifestyle that you have moved away from. I was told on the plea that you have been involved in community counselling and support in that regard.

26Character references were tendered from your father, Barry James, your mother Kaylene James, your sister Rebecca Dalla Zanna and your sister Shelley Coates. It is clear from reading these refences that you have a close and supportive family. Each of your family members are aware of the nature of the offending and offer you their continued support. Your mother provides some detail of your history and the difficulties you faced growing up and were facing in the period leading up to the offending.

Sentencing considerations

27As Charge 1 is a Commonwealth charge, I am required to take into account a relevant matters pursuant to s16A of the Crimes Act1914 (Cth).

28Mr Stanton who appeared on your behalf highlighted a number of those matters in mitigation.

29First is your plea of guilty. You indicated that you would enter a plea of guilty to the charge on the indictment following a sentence indication hearing before me on 28 February 2022. In the circumstances your plea can be considered to be a plea at the earliest reasonable opportunity, with no contested committal or pre trial examination having been conducted. Your plea of guilty has significant utilitarian benefit, sparing the time and expense of a jury trial and saving witnesses from having to give evidence.  The plea carries additional weight, which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[4]

[4] Worboyes v The Queen [2021] VSCA 169, [39].

30Ms Stanton submitted that while you do not suffer from any impaired mental functioning, you are a first time offender being sentenced for a sexual offence. As such it was submitted that given your presentation as a slight and introverted man with the vulnerabilities that have been highlighted in the references tendered, you would find prison more burdensome, particularly when also faced with the COVID-19 restrictions that are ongoing within the prison system. In my view, while your circumstances are not unique, I accept to some extent, that prison would weigh more heavily on you given your vulnerabilities and I take that fact into account.

31As to you prospects of rehabilitation, Mr Stanton submits that in the all the circumstances they can be considered as strong. You come before the court with no prior convictions and it is clear that you have the ongoing support of your parents and siblings. You have also demonstrated that you are committed to your rehabilitation by seeking out targeted counselling in order to deal with the core issues that underpinned the offending. If you accept and engage in such treatment in my view in all the circumstances, your prospects can be assessed positively.

32While you have no prior criminal history, in my view specific deterrence remains relevant. Access to child abuse material is able to be achieved privately and often anonymously. As such the temptation of reoffending is ever present during the process of rehabilitation and you must be deterred from that temptation. Further, it is clear from the second report of Ms Jeffrey that you have limited insight in relation to the nature of your offending which necessarily impacts the assessment of risk. As such, as a condition of the sentence that I impose, you will be required to engage in further formal treatment under supervision.

33In cases of this nature general deterrence is the primary sentencing consideration. It is well established there is a paramount public interest in promoting the protection of children who have been sexually abused and exploited in the manner depicted in the material you possessed and used for your own gratification.[5]

[5] The Queen v De Leeuw [2015] NSWCCA 183, [72].

34Having weighed the applicable sentencing considerations, pursuant to s 17A(1) of the Crimes Act 1914 (Cth), I am satisfied in the circumstances that no other sentence is appropriate other than a term of imprisonment.

35As the charge to which you have pleaded guilty is a Commonwealth sex offence, s 20(1)(b)(ii) of the Crimes Act 1914 requires that exceptional circumstances be established before the court can order immediate release on a recognisance release order. Mr Stanton submitted that exceptional circumstances are able to be established in this instance relying on the combination of your personal circumstances together with the impact of the COVID-19 pandemic on the prison system. Mr Stanton submitted that as the COVID-19 restrictions have impacted opportunities for education and treatment in custody, in circumstances where the court must have regard  to the objective rehabilitation of the offender, including treatment options,[6] a short sentence before release would not be able to achieve those objectives and may be counterproductive.

[6] Crimes Act1914 (Cth) s 16A(2AAA).

36In my view when taking in to account the relevant matters in combination, exceptional circumstances are able to be established in this instance. As such I am also of the view that a term of imprisonment which takes the form of a suspended prison sentence together with specific targeted conditions, is able to meet the relevant sentencing considerations.

37Finally, while accepting the limitations on the utility of the provision of comparable cases, Mr Stanton and Ms Dinola provided me with a number of appeal decisions of Australian intermediate appellate courts which I have taken into account.

Sentence

38Mr James, will you please stand.

39Robert Edward James, on Charge 1, possess or control child abuse material obtained or accessed using a carriage service, you are convicted and sentenced to 18 months imprisonment. 

40Pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be released forthwith upon giving a recognisance in the amount of $3000 to be of good behaviour for a period of three years.

41Further, that as a condition of the recognisance release order, you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for two years, and you must undertake a sex offender treatment program within two years.

42I am required to explain to you that if you breach the conditions of the order you may be brought back before the court to be dealt with for that breach, which could include being ordered to serve the prison component of the order, and you may forfeit the $3000.

43Further, as Charge 1 is a Class 2 registerable offence pursuant to the Sex Offenders Registration Act 2004, you will be required to comply with reporting obligations for a period of 8 years.

44Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty, I would have sentenced you to 2 years imprisonment to be released on a recognisance release order after serving 12 months. 

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