Director of Public Prosecutions (Cth) v Kitaoji
[2022] VCC 1689
•30 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00401
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| RIO KITAOJI |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2022 | |
DATE OF SENTENCE: | 30 September 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v Kitaoji | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1689 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: possess or control child abuse material, obtained or accessed using a
carriage service
Legislation Cited: Crimes Act 1914; Sex Offenders Registration Act 2004;
Cases Cited: DPP (Cth) v Garside (2016) 50 VR 800; Clarkson v The Queen (2011)
32 VR 361; R v Porte [2015] NSWCCA 174; R v Edwards [2019] QCA 015; The Queen v Pham (2015) 256 CLR 550; Worboyes v The Queen [2021] VSCA 169; Baldwin v Police [2007] SASC 214
Sentence: Two years’ imprisonment, to be released after serving 6 months on a
Recognisance Release Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Holmes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue & George Criminal Lawyers |
HER HONOUR:
Introduction
1 Rio Kitaoji, on 26 September 2022 you pleaded guilty before me to one charge of possess or control child abuse material, obtained or accessed using a carriage service, contrary to s474.22A(1) of the Criminal Code (Cth). That offence has a maximum penalty of 15 years' imprisonment.
2 A plea on your behalf was conducted before me on the same day and it now falls to me to sentence you. Your counsel, Ms Parsons, conceded that a sentence of imprisonment was warranted, but submitted that you should be released immediately on what is known as a recognisance release order. The nature of your offending means that I am only able to do that, that is, release you immediately, if there are exceptional circumstances which she submitted that there were. The prosecutor, Mr Holmes, submitted that there were no exceptional circumstances and that the only appropriate sentence was one involving an immediate term of imprisonment followed by your release on a recognisance release order.
3 In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will discuss in these sentencing remarks.[1] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[1] Section 16A of the Crimes Act 1914 (Cth).
Circumstances of the offending
4 The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[2] In short, on 23 November 2021 police executed a search warrant at your home address in your presence. Preliminary analysis of an ASIS laptop revealed that it contained child abuse material. Police then seized that computer, as well as five other devices, comprising a USB drive, a Microsoft Surface Pro and three mobile phones. You were arrested and, following a no-comment record of interview, charged and released on bail on the same day. You have not spent any time in custody.
[2] Exhibit A on the plea.
5 Later analysis of the six devices seized from your premises revealed that they all contained child abuse material. In total, there were 1,017 child abuse material files which comprised:
Five images in category 1, one video in category 1, 1,006 images in category 2 and five videos in category 2.
6 Now, to explain what those categories are. It is something called the Australian Child Abuse Categorisation Scheme. Category 1, child abuse material, is media depicting a real prepubescent child, or the very first signs of puberty, who appears to be under 13 years of age and the child is involved in a sex act, witnessing a sex act or the material is focused or concentrated on the anal or genital region.
7 Category 2 is all other child abuse material that is illegal within Australia. This includes sexual abuse media where the victim is a pubescent child who appears to be under 16 years of age, not a real child or where there is no clear focus on the genital or anal regions. It also includes non-sexual child abuse media involving images of a child subjected to sadism, torture, bestiality or humiliation.
8 Of the total number of files found on your various devices there were some repeat images. Approximately 272 images and three videos were animated and the rest were of real unknown children. The child abuse images and videos found across all devices were as follows:
· A video depicting a prepubescent female between five and eight years of age performing sexual poses in a G-string, including sucking on a phallic object and having an ejaculate‑like liquid dripped on her face and buttocks.
· Images of the same (but different from the video) prepubescent female, between nine and 11 years of age, in sexualised positions and wearing various bikinis and underwear, with a focus on the buttocks and genital area. These images were found on the ASIS, USB drive, Surface Pro and a mobile phone.
· Images of a pubescent female between 12 and 15 years of age in sexualised positions in various costumes and settings, with a focus on the buttocks and genital area. These images were found on the ASIS and USB drive.
· Images of a pubescent female between 13 and 15 years of age with her skirt raised, exposing her vagina and buttocks, and performing fellatio on an adult male.
· An image depicting a prepubescent female between six and eight years of age on a bed with her legs splayed and genitals exposed, with a ball sticking out of her vagina.
· An animated video depicting a prepubescent female being gagged, tied up, sexually penetrated and having cunnilingus performed on her by an adult male.
· Animated images depicting prepubescent and pubescent females mostly naked and in various sexual acts with adult males, including penile penetration of the female's vagina and anus, penetration of the female's anus with a sauce bottle, fellatio and cunnilingus. Some of the images formed storylines involving forced sex and torture.
· Animated images depicting prepubescent females as young as seven to eight years old being raped by naked adult males, including people depicted to be their fathers and grandfather, and showing various sexual acts, including penile penetration of the female's vagina and anus, fellatio and cunnilingus. The images also depict children being tied down or threatened with a knife, the sex acts being videorecorded and children being gang raped repeatedly.
Your personal circumstances
9 Turning to your personal circumstances: these were outlined in defence submissions. You were born in Tokyo, Japan in July 1978 to Hironubo and Eureko Kitaoji. Your parents were both anthropologists, academics and teachers. You have an older sister Sara and a younger sister Aya. You are now 44 years old. You are a Japanese citizen and a permanent resident of Australia.
10 In 1983 when you were five years old your family moved to Australia settling in Victoria. Your parents lectured at several universities and set up a Japanese language and art school. You describe your parents as strict, with a strong moral code. You had a happy childhood. You spoke Japanese at home and were immersed in Japanese culture.
11 You attended Vermont South Primary School and Mount Waverley Secondary College until Year 10. At the age of 17 you left home to study in Okinawa, Japan. You began teaching and tutoring English at the American University, returning to Australia in 1998 at aged 20 to care for your mother who had been diagnosed with breast cancer.
12 You then travelled for a couple of years, including to Sweden, with frequent returns to Australia. In 2001 your mother's cancer recurred and you returned to Australia until she died in 2002. You then moved to Tokyo with your sister Sara and worked there teaching English until you returned to Australia in 2011.
13 In 2012 you became the full-time carer for your father until he was placed in an aged care home in 2020. Your father was domineering. He suffered from dementia and other health issues, and you found caring for him difficult. According to your sister you became somewhat isolated whilst caring for him and more so after he moved into an aged care home and throughout the COVID-related lockdowns. Your father died in 2022.
14 You are currently receiving JobSeeker payments. You have had several long-term intimate relationships and are currently in a long distance relationship.
Objective gravity of your offending and moral culpability
15 Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. Possession of child abuse material is a serious offence. If there is any doubt about it the maximum penalty of 15 years' imprisonment makes it clear. That said, there is obviously a spectrum of seriousness within any offence and your offence is no exception. The criteria by which the seriousness of child pornography offences are to be judged have been set out repeatedly by appellate courts throughout Australia.[3]
[3] See, eg, DPP (Cth) v Garside (2016) 50 VR 800 at [25].
16 In your favour there is no suggestion that you were involved in the further distribution of this material or that you profited from its possession in any way. Nothing is known about how long you had the various images and videos, save that it obviously took you some time to acquire them and that you did so on multiple devices. It is also not known how many actual real children were depicted, save that the description of the material I have outlined indicates there were at least five.
17 What is known is that you had over 1,000 images and videos on various devices. It is true that this court often sees a much greater quantity of material possessed, however, what you had was not insignificant and indicates a developed interest in child abuse material. Further, the nature and content of the material was depraved and disturbing. Well over two-thirds of the files depicted real children, some possibly as young as five or
six years old, engaged in sexualised activity, including with an adult man and objects. The remaining files, although animated, depict a violent and sadistic sexual activity between children and adults.
18 Ms Parsons submitted that your conduct needed to be seen in a particular cultural context, namely, your exposure and interest in Japanese Manga and Anime, and its frequent depiction of young girls in ways that would not be acceptable in Australian society. She also pointed to the fact that the age of consent in Japan is only 13.
19 Similarly, you told your treating psychologist, Dr Barth, that the child abuse material you possessed was legal and common in Japan, and that you did not know you were breaking the law in Australia until you were arrested. You denied that there was any sexual motivation behind your offending and maintained that position in the face of what Dr Barth described as a strong challenge by him.
20 Whilst conceding that your offending was serious, Ms Parsons submitted that it fell at the lower end of the scale. Mr Holmes acknowledged that it was not the most serious example of this particular offence, but otherwise would not be drawn into where on the scale your conduct sat.
21 I do not consider that cultural factors reduce the seriousness of your offending or your moral culpability. I do not accept your account to Dr Barth that you were not motivated by sexual gratification. In my view, you were being less than honest with him and in so doing attempting to minimise and justify your conduct.
22 It may be that your exposure to Anime and Manga was the genesis of your sexual interest in young girls, but I have no evidence, expert or otherwise, to that effect and, in any event, that would not excuse or mitigate your possession of the material in this case. You grew up in Australia and have spent many years here. I have no material before me as to your intelligence, but you come from a well-educated family and one of your character referees describes you as a well-educated man, knowledgeable on many topics and able to converse seamlessly.
23 I consider it highly unlikely that you did not realise that what you possessed was illegal in this country, whatever the situation might be in Japan. This is particularly so given, as I have already said, over two-thirds of the material you possessed was of real children and the animated material was not only graphic, but also violent and sadistic.
24 That said, I do accept that your offending falls somewhere less than the midway point on the spectrum of seriousness for the charge. Further, whilst I consider your moral culpability to be high, I also accept, as you have told Dr Barth, that you may not have fully appreciated the harm caused by your conduct, especially in the case of the animated material.
Impact of your offending
25 In that regard, I am required to take into account any injury, loss or damage resulting from your offence and any Victim Impact Statement tendered.[4] Of course the identities of your real victims being unknown there are no Victim Impact Statements in this case, however, that does not mean they were not harmed by your conduct as the end consumer. There is a legal presumption that premature sexual activity causes long-term and serious physical and psychological harm to children regardless of consent. That presumption applies just as much to victims of cybersex offences as it does to contact offending,[5] with the victims in such cases having to live with the knowledge that their images will remain on the internet indefinitely.[6]
[4] Section 16A (2)(e) and (ea) of the Crimes Act 2014.
[5] Clarkson v The Queen (2011) 32 VR 361.
[6] R v Porte [2015] NSWCCA 174 at [69] – [70].
26 Further, it is wrong to think of your possession of the animated images and videos as harmless or victimless.[7] Your participation as a consumer of both real and animated child abuse material perpetuated the exploitation and corruption of young children.
[7] R v Edwards [2019] QCA 015 at [78] and [84].
Current Sentencing Practices
27 To promote consistency of approach in sentencing, particularly the application of relevant principles, I must have regard to sentences imposed in other cases, including, since this is a Commonwealth matter, sentences considered on appeal in other states and territories.[8] Comparable cases may also reveal discernible sentencing practices and sentencing ranges, although no two cases are ever truly the same and there is no single correct sentence.
[8] The Queen v Pham (2015) 256 CLR 550 at [18] and [23] in the case of Commonwealth offences.
28 Cognisant of the limitations involved in such an exercise, I have had regard to the table of sentences provided by the prosecution. I note that a number of the cases involve the state equivalent to your offence which has a lower maximum penalty of 10 years and also that none of the cases consider the question of exceptional circumstances in relation to recognisance release orders.
Plea of Guilty, co-operation and remorse
29 You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. You indicated an intention to plead guilty at the first committal mention of the matter in the
Magistrates' Court on 17 March 2022. In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. There is a very real utilitarian benefit in your plea of guilty and especially so in light of the significant backlog in cases caused by the pandemic, that is, the backlog is caused by the pandemic. Our Court of Appeal has repeatedly emphasised the high value of pleas of guilty entered during the pandemic and the need for sentences to reflect this.[9]
[9] See eg, Worboyes v The Queen [2021] VSCA 169 at [39].
30 I accept that you are embarrassed and ashamed about being charged and also sorry for the ramifications for your family. According to Dr Barth you also have an emerging appreciation of the harm caused by offending such as yours and I take all of that into account.
Your character and risk of reoffending
31 You have no prior convictions and are entitled to be sentenced as a person of otherwise good character. You have a reasonable work history. Five character references were tendered on your plea. Three are from your friends, one is from your sister Sara and one is from your girlfriend Lorelyn Estacion. There is no doubt that these people know you as a kind and considerate man, and also that they know you to be thoughtful and supportive. It is also apparent that you were popular and well-respected by your students in Japan due to your enthusiasm and creativity.
32 After you were charged you voluntarily, and at your own expense, participated in the sex offender program with Dr Barth. This is to your credit. By the time of his report on 18 September 2022 you had attended eight 60-minute sessions with him. As I have already noted, it is of concern that you sought to justify your behaviour and conceal your true motivations from him. He described you as defensive, your engagement as relatively superficial and your progress as particularly slow. Given that, it is difficult to form a concluded view as to your prospects of rehabilitation, although I am satisfied that the shame and humiliation of being charged has had some deterrent effect on you. Whilst I do have concerns, on balance I consider your prospects to be reasonable.
Other mitigating factors
Risk of Deportation
33 A matter raised on your behalf was the prospect that you might be deported. That is, in the defence submissions it was said that your future in Australia is uncertain and that you know that there will be immigration implications as a result of these proceedings and that you may be deported. I take into account the fact that you are concerned about your uncertain future, but in the circumstances I can give it little weight, and the reason for that is two-fold. First, there is no evidence before me as to the likelihood that you will, in fact, be deported as a result of these proceedings and the sentence that I impose and, secondly, whatever happens with your immigration status you see your future in Japan and not in Australia. Your situation is to be contrasted with others where the loss of the opportunity to stay and live in Australia is a real additional punishment. In other words, whatever happens to your immigration status you do not see yourself as remaining in Australia anyway.
Purposes of Sentencing
34 I am obliged under Commonwealth law to ensure that my sentence achieves the sentencing purposes of adequately punishing you, deterring you and others from committing this sort of offence, and promoting your rehabilitation. General principles require that I not impose a more severe sentence than is necessary to achieve those sentencing purposes. As I have already said, your counsel has properly conceded that the only appropriate sentence is imprisonment, although she submitted that you should be released immediately on a recognisance release order which the law only allows me to do if there are exceptional circumstances.
35 Ms Parsons relied on a combination of factors to establish exceptional circumstances which I have already canvassed in these sentencing remarks and there is no need to repeat them. The prosecution disputed that any of these factors on their own, or in combination, amounted to exceptional circumstances and I agree. Even without the legislative requirement to establish exceptional circumstances, I would be of the view that the only sentence which would meet the purpose of the sentencing in this case is one involving an immediate term of imprisonment.
36 To elaborate, it is well-established that general deterrence is the primary sentencing consideration for offences involving the online exploitation of children. These offences are easy to commit, difficult to detect, cause irreparable harm and are prevalent. It is necessary that my sentence sends a clear message to any person who is minded to engage in this conduct that if caught they will be sentenced severely. The authorities clearly establish that sentences of immediate imprisonment are almost always required and that an offender's personal mitigating factors, such as good character, age and prospects of rehabilitation, are of lesser significance than for other types of offences where such features may be less common.[10]
[10] see eg, DPP v Garside [2016] VSCA 74 at [63].
37 The authorities have also regarded specific deterrence as an important sentencing consideration for these of offences[11] and, given the report of Dr Burrows, it is obvious that it does have some role to play in your case. In other words, I need to ensure my sentence deters you from doing this sort of thing again. As far as your rehabilitation is concerned, this is an important consideration and will be provided for in the terms of the recognisance release order.
[11] see eg, Baldwin v Police [2007] SASC 214 at [16] to [18].
38 In determining the length of the sentence that you will be required to serve, as well as the overall sentence that I impose, I take into account the fact that any time in custody will be harder because of the COVID-19 pandemic, and also that it may be that because of the nature of this offence you will be required to spend some or all of your time in protective custody.
Sentence
39 Mr Kitaoji, on that single Commonwealth charge I convict and sentence you to two years' imprisonment, but I order that you be released after serving six months. The formal order will be that I order that you be released under paragraph 21B of the Crimes Act 1914 after serving six months of that two years upon you giving security by recognisance of $500 to comply with conditions that you:
(a) be of good behaviour for a period of three years;
(b) be subject to the supervision of a probation officer for a period of
two years;
(c) that you obey all reasonable directions of the probation officer;
(d) that you not travel interstate or overseas without the written permission of the probation officer;
(e) that you undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
40 There are some other conditions which are necessary to give effect to those rehabilitative conditions and they are:
· that you report to the Ringwood Community Corrections Centre within two clear working days upon your release from custody, Ringwood being the closest community corrections centre to where you live, assuming you still live in Vermont when you get out;
· that you report to and receive visits from a community corrections officer;
· that you notify an officer at the specified community correction centre of any change of address or employment within two clear working days after the change;
· that you attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by your probation officer;
· that you attend, undertake and complete the sex offenders programs within a period of two years.
41 I know that you have already had eight sessions with Dr Burrows and I will direct the Office of Corrections who are administering the recognisance release order to take into account that you have partially completed that sex offender program.
Sex Offence Registration
42 I also have to inform you in relation to your sex offender registration. You have pleaded guilty to one class 2 offence within the meaning of the
Sex Offenders Registration Act 2004. That means you will be required to comply with the reporting obligations under that Act for a period of eight years. The Sex Offenders Registration Act 2004 provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.
43 I will ensure that that notice is given to you now in court, but essentially with that provision, the reporting obligation, you need to have annual meetings and whatever other meetings that you are directed to have with the person who is administering that. You will have to inform of any devices you have, any addresses you have, telephone numbers, there's a whole range of things. You need to ensure you comply, because if you do not it is an offence and you will be charged with breaching that order.
44 I also need to inform you of what will happen if you breach the recognisance release order. If you do breach it then again that is an offence and you will be charged with breaching that order, and what can happen is, there is a range of things, but essentially you will be brought back before me and I can fine you, I can amend the order to extend the period of effectively your good behaviour, I can revoke the order and make a community corrections order or I could revoke the order and order that you be imprisoned for the rest of that term of two years.
45 You essentially have the rest of that term of two years hanging over your head for the period of that recognisance release order, or I could take no action, but I would need to be persuaded to do that. So you understand the order that I have imposed, which is essentially I have sentenced you to two years, but I have directed that you can be released after six months on that recognisance release order, which is a promise to be of good behaviour for that period of three years, as well as to comply with all those other conditions which are aimed at your rehabilitation. Do you understand that?
46 OFFENDER: Yes.
47 HER HONOUR: And do you understand the likely consequences if you were to breach your recognisance release order? You may have to serve the rest of that two years as well as there are other possible consequences.
48 OFFENDER: Yes.
49 HER HONOUR: And also the sex offender registration, you understand in general terms what is required of you?
50 OFFENDER: Yes.
51 HER HONOUR: All right. So what I will have done is - I will sign the recognisance release order first of all and then you will be required to sign it. Also, I did not say, the period of the good behaviour is for three years, but the period that you will be required to be subject to supervision is for a period of two years. So this will be taken to you to sign now. That is the recognisance release order. Ms Parsons, do you want to have a look at the order or do you want to take it to - - -
52 MS PARSONS: If I could, yes. Do you mind if I approach with your associate?
53 HER HONOUR: Yes. That's fine, yes.
54 MS PARSONS: Yes, thank you. Thank you, Your Honour.
55 HER HONOUR: And as far as the sex offender registration, I will - - -
56 MS PARSONS: Yes.
57 HER HONOUR: So I've signed the document and it will be given to you. It sets out all your reporting obligations and my associate, perhaps with
Ms Parsons, if Ms Parsons wants to go up, will just provide you with that document now.
58 Now, the only other things I just wanted to check, obviously s6AAA does not apply. There's no Commonwealth equivalent, is there?
59 MR HOLMES: No, Your Honour. Section 6AAA is discretionary as I understand it.
60 HER HONOUR: All right. And are there any ancillary orders sought,
disposal or - - -
61 MR HOLMES: No, Your Honour. Forfeiture by consent.
62 HER HONOUR: Yes. All right. Now, are there any other matters that I've neglected or that counsel wish to raise with me?
63 MS PARSONS: Nothing to raise. Thank you, Your Honour.
64 HER HONOUR: Yes. And obviously it's Mr Kitaoji's first time in custody.
65 MS PARSONS: Yes.
66 HER HONOUR: Are there any management issues you wanted me to indicate or - - -
67 MS PARSONS: No, Your Honour. Thank you.
68 HER HONOUR: Yes. All right. Thank you very much. Now, I'd just ask if
Mr Kitaoji could be removed. Thanks. And I'll leave the Bench.
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