Director of Public Prosecutions (Cth) v Magri
[2022] VCC 109
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01790
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ANTHONY MAGRI |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2022 | |
DATE OF SENTENCE: | 11 February 2022 | |
CASE MAY BE CITED AS: | DPP (Cth) v Magri | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 109 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Use carriage service to access child pornography material – Use carriage service to transmit child pornography material – Possess child abuse material - Very serious example of this type of offending – Delay – Advanced age – COVID-19 pandemic.
Legislation Cited: Criminal Code (Cth) s 474.19(1); Crimes Act 1958 s 51G; Crimes Act 1914 (Cth) ss 16A, 16BA, 17A(1), s20(1)(b); Sex Offenders Registration Act 2004 s 34(1)(c); Sentencing Act 1991 s 6AAA.
Cases Cited:DPP (Cth) v Garside (2016) 50 VR 800; Worboyes v The Queen [2021] VSCA 169; The Queen v De Leeue [2015] NSWCCA 183; Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; Commonwealth Director of Public Prosecutions v KMD [2015] VSCA 255.
Sentence: Imprisonment for 2 years and 6 months, to be released after 9 months imprisonment on a recognizance of $3000 to be of good behaviour for a period of 3 years and to complete a sex offender treatment program.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Keks | Commonwealth Office of Public Prosecutions |
| For the Accused | Ms M. Brown | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Michael Anthony Magri, you have pleaded guilty to one charge of use carriage service to access child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment (Charge 1), one charge of use carriage service to transmit child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment (Charge 2), and one charge of possess child abuse material, contrary to s 51G of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 3).
2You have also admitted a further offence of using a carriage service to access child pornography material between 1 March 2005 and 29 March 2010, which carries a maximum penalty of 10 years imprisonment. I will take that offence into account in passing sentence on you in accordance with s 16BA of the Crimes Act 1914 (Cth).
3You have also admitted your criminal record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were aged 74 years at the time of your arrest. During the offending, you lived with your wife at an address in Colchester Road, Kilsyth.
6In October 2018, law enforcement authorities received information from Facebook that child abuse material had been sent from your Facebook account.
7On 15 January 2019, a search warrant was executed at your home. You and your wife were present. You were arrested and cautioned. During the execution of the search warrant, you told police that they would find child abuse material on a USB drive.
8A number of electronic devices were seized from a room in the house which was set up as a computer room for you. These devices consisting of USB and hard drives are listed in further detail in the prosecution opening.
9Each of these devices was forensically analysed and found to contain child abuse material. The material was classified in accordance with the Child Exploitation Tracking System ('CETS') scale.
Charges 1, 3 and the Further Offence
10Charges 1, 3 and the Further Offence relate to the child abuse material which was located on your devices after the execution of the search warrant on
15 January 2019.11Forensic analysis revealed that the devices seized contained the following quantities of files which constituted child abuse material, as well as the last date on which you had accessed material on each device:
Device Images Videos Total Date of last access to material on device Lexar USB1 4 4 8 8 January 2019 Sandisk USB1 0 9 9 25 September 2018 Essentials USB 46 52 98 8 August 2018 Median USB 27,031 1,359 28,390 9 January 2019 Lexar USB2 0 1 1 13 October 2018 Sandisk USB2 0 2 2 24 October 2018 Desktop computer 208 1 209 14 January 2019 Sandisk USB3 0 6 6 27 June 2018 Sandisk Ultra USB 0 159 159 26 August 2018 WD external hard drive 0 2 2 25 July 2011 12In total, the devices contained 28,884 files which constituted child abuse material, comprising 27,290 images and 1593 videos.
13The child abuse material found on the devices was classified according to the CETS scale as follows:
| Category | Images | Videos | Total |
| 1 (no sexual activity) | 4,789 | 30 | 4,819 |
| 2 (solo masturbation or sex acts) | 3,698 | 318 | 4,016 |
| 3 (non-penetrative sexual activity with an adult) | 3,264 | 188 | 3,452 |
| 4 (penetrative sexual activity with an adult) | 4,831 | 734 | 5,565 |
| 5 (sadism, bestiality, humiliation or child abuse) | 360 | 35 | 395 |
| 6 (animated or virtual) | 10,348 | 288 | 10,636 |
14The material found on the devices included the following:
(a) The material on the Lexar USB1 depicted children, including toddlers, masturbating themselves and adults, and performing oral sex. The children were visibly distressed and were unwilling participants;
(b) The material on the Sandisk USB1 depicted children, including toddlers, being vaginally and anally penetrated by adult male penises and objects. Some material depicted children blindfolded and distressed while being forced to masturbate adult male penises;
(c) The material on the Essentials USB included depictions of naked infants in sexual poses and of children, including toddlers, performing oral sex on adults, having oral sex performed upon them by adults, being anally penetrated by adult male penises, and being penetrated by animals.
(d) The material on the Median USB (which was saved in a folder titled 'music') included depictions of:
(i)children, including toddlers, having pain inflicted on their genitals via whips, clamps and electrocution, and being penetrated by objects while tied up, bound and gagged;
(ii)babies having objects inserted into their vaginas;
(iii)sexual activity between children, including babies;
(iv)blindfolded children having sexual acts performed on them by animals and being urinated upon;
(v)female babies and toddlers engaging in sexual activity, including vaginal and anal penetration, with adult males, including with multiple adult males at the same time and while restrained and in distress;
(vi)humiliating and demeaning acts, such as a female toddler being ejaculated upon by two adult males with the words 'fuck me' written on her bare chest; and a naked and distressed female toddler with two black eyes, bruises and wounds on her face and upper body, being ejaculated upon by an adult male; and
(vii)The material on the desktop computer (which was saved in folders including 'Downloads', 'ManyCam' and 'Skype') included depictions of female toddlers engaged in sexual activity, including penetration, with adult males and females, and a prepubescent female child being urinated upon.
15Your possession of the child abuse material at the time of the execution of the search warrant on 15 January 2019 constitutes Charge 3.
16The files located on each of the devices had a creation date, which the prosecution says can be inferred to be the date upon which you downloaded the file from the internet and saved it to the device. The relevant dates for the material found on each of the devices are detailed in a table in the prosecution opening.
17Your conduct in accessing child abuse material between 1 March 2005 and
29 March 2010 is the subject of the Further Offence. You accessed 10,611 files constituting child abuse material during this period.18Your conduct in accessing child abuse material between 22 April 2010 and
14 January 2019 is the subject of Charge 1. You accessed 18,151 files constituting child abuse material during this period.19In addition, 122 files possessed by you were accessed by you prior to
1 March 2005. Your conduct in accessing those files is not the subject of a charge (though your possession of the files is part of Charge 3).Charge 2
20Charge 2 relates to your transmission of child abuse material over Facebook on 24 July 2018. On that day, in the course of a conversation on Facebook Messenger with a person named Thetma Ertsevlis who was in the Philippines, you sent an image of a prepubescent female child being ejaculated upon by an adult male. The image, which constituted child abuse material, was classified as Category 3. After sending the image, you said, 'You should buy a vibrator'.
21The image sent by you was one of the files located on the Median USB.
Interview
22You participated in a record of interview with police on 15 January 2019. You made extensive admissions, giving the following account:
(a) You had 'a lot' of child pornography, meaning that 'there could be a thousand';
(b) When asked to define child pornography, you said, 'I can break it up in … several categories … I detest anything that – really seriously abusive. … I'm not in a type to look at anything that's violent … or sadistic';
(c) You said, 'I think it's just the nature of affection, the love to look at beautiful young girls';
(d) You had images with girls of ages 'usually somewhere between four, five … up till legal age.' Later, you said that you would 'try to avoid the tiny tots … But they come with part and parcel'. Anything 'below four … is pretty, like gross'. 'But it's … there. I won't deny that'. You said that police would find 'a variety of – of images', but 'I don't like anything … really violent or anything like that … force, or act of rape';
(e) You obtained the images by going to websites with adult pornography and clicking links which eventually led to child pornography. Once you viewed an image on a website, you would right-click and download it. You would then transfer the images to a USB drive to save them. You kept them 'Just for interest, like collecting stamps, you know.' It was 'just a pastime … this was just something to do';
(f) You said that you regret the offending and were wanting to be caught. At one stage, you smashed some of the USBs and a hard drive with a hammer;
(g) You said that you had never shared the images with anyone else;
(h) You had been looking at and saving the images for 10 or 12 years;
(i) When asked how seeing the images made you feel, you said, 'I'd be a liar to say that it doesn't arouse, but … it's a habit, it's just sort of got into my – mind that it looks to be fairly normal'. You said that 'it became a compulsion.';
(j) You had a Facebook account that was now inactive, because about six months ago you had accidentally sent an image constituting child pornography to someone. You said that you could not remember who you had sent the picture to;
(k) When information which had been received from Facebook was put to you, you recalled sending 'some images' to an adult female;
(l) When asked if you were familiar with a person named Thetma Ertsevlis, you said, 'yeah, that was whom I sent it to now I come to think of it', that she was in the Philippines, and 'she was sexually orientated as well and she was sending me images'. You said that you would send gifts to people in the Philippines from your pension, and 'they use the romance as a – as a – what do you call it? As an encouragement';
(m) In respect of the conversation with Ms Ertsvelis, you said, 'I've sent her a couple of gifts every now and then … so she started sending me images' of adults. You 'sent her those few images … She didn't respond but I – I think at the end I think she says basically, 'Enough's enough. Don't send any more'';
(n) That was the first time in your life you had sent an image of a child;
(o) You sent 'Six or eight, maybe nine' images on the one day. You were 'testing her [and] waiting for a reaction'; and
(p) Your collection of the images started when you were downloading songs using peer-to-peer software and you saw that child pornography was available, and 'I thought I'd test it out'.
23AUSTRAC records reveal that you made a number of remittances to persons in the Philippines between 13 December 2012 and 11 January 2019.
Nature and gravity of the offending
24Charges 1 and 3 together with the Further Offence related to the child abuse material which was located on your devices after the execution of the search warrant on 15 January 2019. That material consisted of 28,884 files of child abuse material, comprising 27,290 images and 1593 videos.
25In assessing the nature and gravity of the offending in this instance, I take into account the nature and content of material, the number of items possessed, and the length of time for which you possessed that material.
26Mr Keks, who appeared on behalf of the Commonwealth Director of Public Prosecutions, in oral and written submissions submitted that your offending is very serious. Ms Brown, who appeared on your behalf conceded that your offending represents a serious example of serious offences.
27The mere number of items that you were in possession of necessarily involved a large number of children. While there is no evidence that you were involved in distribution of the material, it is self-evident that your conduct involved a degree of planning and organisation in the way you stored and accessed the material. Further, your offending continued over a long period of time, from 2005 to 2019.
28The material that you possessed and accessed included depictions of abhorrent exploitation of very young children, including sexual acts involving animals, torture, and humiliation. As the Court of appeal noted in DPP (Cth) v Garside,[1] access to child pornography is regarded as very serious morally depraved conduct and is harmful to children. In the circumstances, in my view, your conduct represents a very serious example of this type of offending.
[1] (2016) 50 VR 800, [62].
Personal circumstances
29You are now 77 years of age. You were born in Malta and are the youngest of four siblings. You came from a conservative Catholic family and your father was strict. You and your family migrated to Melbourne when you were around six years of age. You struggled at school due to language difficulties, Maltese being your first language, and your literacy and numeracy suffered as a result. You were also excluded and teased by your peers. These issues led to you having social anxiety and low confidence. You ultimately left school after Year 8 and have not had any formal education or training since.
30You married your wife Caroline in 1965 and you had two daughters together.
31From adolescence, pornography became a source of sexual gratification for you that did not require you to engage with others and connect in person. Your involvement with pornography has escalated throughout your adult life.
32As to your employment history, you have worked in manual and semi-skilled jobs, primarily as a leading factory hand for more than 25 years.
33You are now retired and live with your wife. You live a very socially isolated life.
34In 2019 you began experiencing cognitive decline and your sight and hearing has also deteriorated. A letter from Dr Harry Harianto, geriatrician, dated
11 June 2019 was tendered on the plea. Dr Harianto conducted a Mini-Mental State Exam and noted that your score had declined, with main deficits in orientation for time, with problems in executive function and delayed recall. It is unclear the extent to which your cognition has further declined since that assessment.35Your wife prepared a letter to the court which was tendered on the plea. In her letter, Mrs Magri speaks positively of you as a husband and father. Mrs Magri writes of her disbelief and devastation at having learned of your offending. Nevertheless, she has forgiven you and notes you have benefited from recent counselling and that you have demonstrated remorse.
36You are close with two of your siblings. Your sister, Maryanne Hettier, prepared a letter to the court. Ms Hettier writes that she has a positive relationship with you and that you have been there for each other. Further, Ms Hettier states that after having discussed your offending with you, she believes that you are remorseful.
37Following your arrest, in April 2019 you began regular counselling with Mr Peter Hanley, psychologist. These counselling sessions have assisted you in relation to your anxiety and have also been directed to improving your insight into your offending and in developing strategies of behavioural control.
38A report was prepared by Patrick Newton, Clinical and Forensic Psychologist, dated 18 January 2022, which I have read and taken into account. Mr Newton assessed you on two occasions and liaised with your treating psychologist, Peter Hanley. In Mr Newton's opinion, you meet the diagnosis of generalised anxiety disorder, Cluster A personality disorder, and other specified paraphilia with paedophilic features.
39Mr Newton's opinion is that your sexual adjustment is deeply problematic and states:
'Mr Magri has used pornography as a principal sexual outlet. Through doing so he has sought out significant quantities of child abuse material and other frankly deviant content. He engaged actively with this material (masturbating to it and fantasising to themes derived from these topics). Mr Magri also evidenced typical offence supporting cognitive distortions connected to the use of child abuse material. He is unclear about the normative sexual development of young people and has little insight into the harms caused by child abuse material. These deficits in insight persist despite extended treatment with Mr Hanley. This likely reflects the combined impact of personality deficits and cognitive decline. Regardless of the cause, it is important Mr Mangere receive ongoing structured treatment to ameliorate his problems with insight.'[2]
[2] Page 14, point 8.
40Mr Newton also conducted a risk assessment, concluding that you would be at no lower than a moderate risk for sexual recidivism. Mr Newton observed that your level of risk is about the same as that typically posed by sex-offenders undergoing sentence, but significantly higher than that of a typical offender undergoing sentence for online sentencing alone.
Sentencing considerations
41As Charges 1 and 2 are Commonwealth charges, I am required to take into account a number of matters pursuant to s16A of the Crimes Act 1914 (Cth).
42Ms Brown, who appeared on your behalf at the plea, outlined a number of mitigating factors; however, focused on four specific features of mitigation, being your plea of guilty, your co-operation with authorities, delay, and your advanced age.
43Dealing first with your plea of guilty. This matter resolved to a plea of guilty at a further committal mention in the Magistrates' Court on 11 December 2020. The matter proceeded to this Court by way of straight hand up brief.
44Your early plea of guilty has spared the time and expense of a jury trial and witnesses from having to give evidence. Further, as the plea was entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system, it carries additional weight which must be reflected in a further amelioration in sentence.[3] Your plea therefore has high utilitarian value.
[3]Worboyes v The Queen [2021] VSCA 169 at [39].
45It was also submitted that you cooperated with the authorities and were forthright with them, making extensive admissions as to your involvement with child abuse material. Your frank admissions and cooperation further demonstrate your willingness to facilitate the course of justice, which I take into account in your favour.
46Ms Brown submitted that over and above your plea of guilty, you have demonstrated a degree of genuine remorse. While it is clear from the report of Mr Newton that your insight is limited, Mr Newton also notes that your limitations are unsurprising given your cognitive difficulties and personality disorder. You have nonetheless expressed that you are sorry for your conduct, and you have been engaged in counselling since arrest. While there is some concern as to your appreciation of the serious harm caused to children exploited in the material you possessed, I accept that you have begun to develop insight and you have shown some remorse for your conduct.
47Delay is of relevance in this case. The offending occurred between March 2005 and 15 January 2019, the day you were arrested. Charges were not laid until July 2020. I was told the reason for the delay between arrest and charge was as a result of the time taken to analyse all of your devices and then to categorise the images found. This delay, which was not attributable to you, has meant that the matter has been hanging over your head since you admitted your offending, with the real possibility of an immediate term of imprisonment being imposed. This delay has caused you significant anxiety. Further, since the commission of these offences, you have not further offended whilst on bail. I accept that delay is a matter I can take into account in your favour.
48
Ms Brown also relies on your advanced age as a relevant mitigating factor, which has manifested in physical and mental deterioration in recent years. Ms Brown relied on the applicable principals in relation to advanced age; that any period of imprisonment would represent a larger portion of your remaining life expectancy and that imprisonment will likely be more burdensome for you given your age and health concerns. Further, it was submitted that your concerns for your wife while you are in custody will be an added anxiety for you to contend with.
Mr Newton is also of the view that your experience of incarceration is likely to be more onerous than is typical for prisoners who do not suffer your pre-existing health problems and vulnerabilities. In the circumstances, I accept that prison will be a greater burden for you, and I take this into account.
49As to your prospects of rehabilitation, for the reasons already mentioned above, most particularly in relation to your insight, your prospects can only be approached with a degree of caution. You will, upon your release, require further treatment and supervision.
50I take into account the fact that any immediate term of imprisonment will be served under restrictive conditions in custody due to the COVID-19 pandemic. You will be required to undergo a quarantine period and there are ongoing restrictions on personal visits and rehabilitative programs.
51In cases such as this, general deterrence is undoubtedly 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.[4]
[4] The Queen v De Leeue [2015] NSWCCA 183, [72].
52Mr Keks also submitted that there should be a measure of cumulation between Charges 1 and 3 as they represent distinct conduct. While there is a clear overlap in relation to Charges 1 and 3, I accept that a moderate degree of cumulation is appropriate in the circumstances.
53In relation to the s16BA Further Offence, the prosecution submit that the conduct the subject of that offence may be taken into account in passing sentence on Charge 1, in that the conduct related to Charge 1 and the Further Offence amounts to a course of conduct representing additional criminality justifying an increase in the penalty on Charge 1 if it stood alone.
54In the guideline judgment of Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999[5], the New South Wales Court of Criminal Appeal determined the correct approach when taking into account other uncharged offending that is admitted by the defendant. In the principal judgment of Spigelman CJ, His Honour emphasised that such statutory schemes concern the court only with imposing a sentence for the principal offence to which he or she has pleaded guilty[6]. His Honour went on to say as follows:
'Although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be give greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.'[7]
[5] (2002) 56 NSWLR 146; See also Commonwealth Director of Public Prosecutions v KMD [2015] VSCA 255, [82]-[85].
[6] Ibid at [35]
[7] Ibid at [42].
55The considerations therefore that apply in relation to the s 16BA offence require the court to consider your offending on Charge 1 not in isolation, but as part of a course of conduct which takes into account the other admitted access to child abuse material between 1 March 2005 and 29 March 2010.
56Finally, in relation to the two Commonwealth charges, having weighed the applicable sentencing considerations, pursuant to s 17A(1) of the Crimes Act 1914 (Cth), I am satisfied that no other sentence is appropriate other than a term of imprisonment.
57The considerations therefore that apply in relation to the s16BA offence requires the court to consider your offending on Charge 1 not in isolation, but as a part of a course of conduct which takes into account the other admitted access to child abuse material between 1 March 2005 and 29 March 2010.
58Finally, in relation to the two Commonwealth charges, having weighed the applicable sentencing considerations, pursuant to s17A(1) of the Crimes Act 1914, I am satisfied that no other sentence is appropriate other than a term of imprisonment.
Sentence
59Mr Magri, will you please stand.
60Michael Anthony Magri, on the State charge, Charge 3, possess child abuse material, you are convicted and sentenced to eight months imprisonment. On Charge 1, access child pornography material, you are convicted and sentenced to two years and three months imprisonment. On Charge 2, transmit child pornography, you are convicted and sentenced to three months imprisonment.
61The sentence on Charge 3, the State sentence, commences today. The sentences on Charges 1 and 2 will each commence after the expiration of three months of the State sentence. The global total effective sentence being two years and six months.
62In relation to the Commonwealth sentence pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be released after serving six months of that sentence and upon giving a recognizance in the amount of $3000 to be of good behaviour for a period of three years. What that means is that you will serve a period of nine months imprisonment before being released with conditions.
63Further, that as a condition of the recognizance 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 after release, and you must undertake a sex offender treatment program within two years after release.
64I 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 remaining prison component of the order, and you may forfeit the $3000.
65Further, pursuant to s 34(1)(c) of Sex Offenders Registration Act 2004, as you have pleaded guilty to three class 2 offences, you will be required to comply with reporting obligations for the remainder of your life.
66Pursuant to s 6AAA of the Sentencing Act 1991, if not for your pleas of guilty, I would have sentenced you to four years imprisonment, with a non-parole period of two years.
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