Director of Public Prosecutions (Cth) v Maloney
[2019] VCC 1285
•13 August 2019
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02525
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| SIMON MALONEY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Shepparton | |
DATES OF HEARING: | 8 April 2019, 29 July 2019 | |
DATE OF SENTENCE: | 13 August 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Maloney | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1285 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Use a carriage service for child pornography material contrary to sub-s474.19(1) of the Criminal Code (Cth) and possessing child abuse material contrary to s51G(1) of the Crimes Act 1958
Sentence: Immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr T. Crouch | Solicitor for the Director of Public Prosecutions (Cth) |
| For the Accused | Mr J. Fitzgerald | Victoria Legal Aid |
HER HONOUR:
1 Simon Maloney, you have pleaded guilty to two charges on Indictment, namely, Charge 1, using a carriage service to access child pornography material contrary to sub-s.474.19(1) of the Criminal Code (Cth), and Charge 2, possessing child abuse material contrary to s.51G(1) of the Crimes Act 1958 (Vic).
2 The charges are serious and that is reflected in the maximum penalty prescribed by law, being 15 years’ imprisonment in respect to the Commonwealth charge and 10 years’ imprisonment in respect to the State charge.
3 You admitted your prior criminal history. There is a court appearance at the Byron Bay Local Court, New South Wales recorded on 7 May 1992. You were convicted and fined in respect to driving whilst exceeding the prescribed concentration of alcohol in your blood. Then there are three court appearances in Victoria, one of which is of particular relevance. On 9 October 1995, you were charged with indecent act with or in the presence of a child under 16 and that matter was, without conviction being recorded, adjourned until 6 April 1996. Thereafter you have a conviction for hinder in 2003 and another conviction for behaving in an offensive manner in a public place and being drunk in a public place in 1995.
4 I will now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing. A copy will be annexed to the sentencing remarks.
Charge 1,using a carriage service to access child pornography material
5 Briefly, your offending was discovered following the execution of a search warrant at your home address on 22 May 2018. Investigators found you in a shed separate to the house. You confirmed to investigators that you were in possession of child abuse material following which you directed investigators to a computer that was located in the shed.
6 You were arrested and cautioned. Thereafter investigators seized a number of items of interest.
7 Following forensic examination of that material, child abuse images and videos were located on seven devices seized from your premises.
8 A total of 123,164 images and videos of child abuse material were found as detailed in the table set out paragraph 11 of the opening.
9 The child abuse material has been viewed by investigators and classified according to the Australian National Victim Image Library/Child Exploitation Tracking System categories, the details of which are set out in paragraphs 13 to 14 of the opening.
10 The children depicted in the material range from 3 years of age to early teenage years.
11 Whilst the search was being conducted, you made admissions under caution to downloading child abuse material, including 90 GB of child abuse material from 14 May 2018 and completing its downloading on a previous night (21 May 2018). That is the period of the charged offence, Charge 1, on the indictment.
12 The material was downloaded from a site 'LS Land' using the torrent application. Under caution, you told investigators that the material included girls aged eight to 16 or younger, and progressed from the children being dressed, to taking off their clothes and showing their genitals and buttocks.
13 The material is titled 'The Lolita Series' and you described how you would Google 'LS Land' and then transfer the files to a hard drive.
14 Investigators were unable to identify the number of images or videos downloaded in that series.
Charge 2, possessing child abuse material
15 During the search, a Sony laptop was examined and photographs and videos depicting child abuse material were located on the desktop screen and observed by investigators. Further examination of the computer indicated a drive recently attached to the computer had been removed. You told police that the drive could be located concealed inside a toaster in the shed.
16 A record of interview was conducted by police where you admitted owning the items in the shed and you confirmed that no other person residing at the house had downloaded any child abuse material.
17 You gave 'no comment' answers in relation to the downloading of the material and did not give any explanation as to how the material came to be on the computer or any other devices located. You confirmed passwords to various electronic items seized that contained child abuse material.
18 In the record of interview, you made comments about not becoming sexually aroused when viewing child abuse material and compared it to being addicted to playing the pokies.
Procedural history
19 You entered a plea of guilty to the charges on indictment at an early stage in the proceedings, namely the second committal mention on 10 December 2018. The matter proceeded by way of straight hand-up brief. It is accepted that the plea of guilty was entered at an early stage.
Personal history and background
20 In formulating the appropriate sentence, I have had regard to matters put on your behalf by Mr Fitzgerald.
21 By way of personal history, you were 46 during the period of the offending and you are now 47. You live with your mother in Shepparton and you are unemployed.
22 You were born in Melbourne and adopted as a baby by your parents. Your parents have a daughter who is older than you. You have had no contact with your sister since the offending was discovered.
23 You grew up in the Shepparton area and had a happy childhood that was unremarkable.
24 There is a report of you being the subject of an incident of sexual abuse when you were aged eight or nine, by a 13 year old boy. That incident was not reported and you have not received any counselling or other treatment in respect of that abuse. There is no evidence to link your experience to this offending.
25 You have been a long term user of amphetamines and were using during the offending period.
26 You completed Year 12 at the local school and after leaving school moved to live in Queensland, where you worked in the food service industry and hospitality industry.
27 When aged 18, you were involved in a motor vehicle collision that caused injury to your right hip and you have a partial prosthetic right hip.
28 When aged about 20, you returned to Shepparton and have continued to live there ever since. You initially worked as an orderly and theatre technician at the hospital, but then you took on labouring work at local factories. You worked as a brick layer prior to obtaining a job as a steel worker with Steeline, which company you continued to work with, working full time, until 2016.
29 You met your wife in 2004 and married in 2013. There are no children of the marriage. You do have a step daughter, Kylie.
30 Your wife was diagnosed with bowel cancer in about 2010 and you left work to be her full time carer from approximately early 2017. Her condition deteriorated dramatically. She is terminally ill and has multiple sites of metastases. You have lived separately from her since the charges were laid. She was present at the plea hearing and remains supportive of you. She has expressed a desire for you to receive mental health assistance.
31 Over the time during which you cared for your wife you became isolated from other friends and contacts and increased your amphetamines use. It was described as being heavy use around the time of the offending.
32 You were diagnosed with Bipolar Disorder approximately five years ago by Dr Campbell, general practitioner, and you were prescribed Valium and Seroquel. I will speak a little bit more about that diagnosis shortly.
Mitigatory factors
33 Mr Fitzgerald on your behalf openly acknowledged the wrongfulness of your actions. He stressed that you were remorseful and he explained that your recourse to child pornography developed out of your regular use of adult pornography.
34 You had spent a lot of time in the shed at the property because you are unable to be in the house with your wife because you were allergic to her cats. Whilst in the shed you would use ice regularly and access pornography.
35 Mr Fitzgerald acknowledged that possession of child abuse material of any kind is a serious offence. He noted that the vast majority of the seized material fell into Category 1 which does not involve the depiction of any sexual activity.
36 However, that in part only sets out part of the nature of the offending. The tables and details from paragraph 11 of the opening sets out a more comprehensive picture.
37 Those child abuse images and videos were located on six devices, namely, your Sony laptop, two portable hard drives, and three USBs seized from your premises.
38 There was in total of 123,164 images and videos of child abuse material located on those devices.
39
I have had regard to the principles of sentencing child pornography offenders as set out in summary by the New South Wales Court of Appeal in
The Queen v De Leeuw[1].
[1] [2015] NSWCCA 183
40 These types of offences have the potential to cause great harm to children and general deterrence is of particular significance.
41 Generally in cases of this type, personal mitigatory factors and prospects of rehabilitation must be accorded less weight than might otherwise be given.
42 Offending involving child pornography occurs at an international level and has become increasingly prevalent with the internet providing an ease of access and a means of enabling access to people to obtain child pornography. This sort of offending is difficult to detect. It is important that the courts send a message to those who access such material that they will be punished severely.
43 The victims of the various images and videos the subject of these charges are not known.
44 Possession of such material creates the market for the continued corruption and exploitation of these vulnerable children. There is paramount public interest in promoting the protection of children as possession of child pornography is not a victimless crime. Children have been sexually abused in order to supply the market with the images.
45 On behalf of the community I condemn your behaviour.
46 Although there is an overlap between the State and Commonwealth child pornography offences, they are separate and distinct offences directed at different vices.[2] For this reason, the prosecution submits and I accept that a degree of cumulation is required to reflect the different offending conduct.
[2]DPP (Cth) v Garside [2016] VSCA 74 at [65]
47 There is a real need in formulating the sentence for the Court to emphasise general and specific deterrence. General deterrence is acknowledged to be the primary sentencing consideration for this kind of offending,[3] and in these sorts of cases less weight is accorded to prior good conduct.[4]
[3]DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69, 74 [26]; R v Gajjar (2008) 192 A Crim R 76, 81 [27]
[4]Gajjar (2008) 192 A Crim R 76, 81 [28]
48 In relation to the Commonwealth charge, I am required to impose a sentence that is of severity appropriate in all the circumstances.[5] That requirement must be read together with the need to ensure that you are adequately punished.[6]
[5]s16A(1) Crimes Act (Cth)
[6]s16A(2)(k)
49 I have been guided by the factors set out in s.16A(2) of the Crimes Act (Cth), and I have taken into account such matters as they are known and are relevant.
50 Charge 2, the Victorian offence is such that I must have regard to the sentencing principles that apply and I have had regard to the statutory provisions set out in the Sentencing Act 1991 (Vic), in particular s.5.
51 I have had regard to the objective seriousness of your offending.
52 Overall I consider both charges are serious examples of the charged offence.
53 In total, there was 123,164 images and videos containing child exploitation material contained on six different devices located at your address. That demonstrated a degree of sophistication in the collection and storage of such material on your part.
54 The child exploitation material contained 95 per cent of files, Category 1, and 3.5 per cent, Category 2 and some of the files depicted children as young as three years of age.
55 The fact that the majority of the material accessed was largely Level 1 material does not detract from the gravity of the offending.[7]
[7]See Garside paragraphs [67] and [68].
56 I did note also that your collection included files in the higher categories, namely three files in Category 5, 557 Category 4 and 69 in Category 3.
57 I have had regard to the report of Mr Jeffrey Cummins, consultant clinical and forensic psychologist, whose report is dated 12 March 2019. He noted you were embarrassed, guilty and ashamed of your offending and that you were remorseful. He assessed your risk of reoffending using Static-99R assessment tool and the RSVP tool, concluding your overall risk of offending was in the low to moderate range. He recommended that you engage in offence-specific treatment.
58 He was of the opinion you were suffering a Major Depressive Disorder of moderate severity and recurrent in type at the time of the offending and that is associated with anxious stress. He doubted the diagnosis of Bipolar Disorder. He also noted your dependency on amphetamines at the time.
59 He considered that you have a dependent personality style. You were quite emotional during the interview and displayed some characteristics of borderline personality disorder. He considered there was high probability that your mental health would deteriorate and quite probably significantly so if you were to be incarcerated.
60 His opinion is that your Major Depressive Disorder dates back to when your wife was first diagnosed with bowel cancer approximately 10 years ago. Thereafter you have struggled emotionally adjusting to her changed medical status and associated mental health problems.
61 Dr Sally Chow, consultant psychologist, prepared a report at the request of the court. Her report dated 24 July 2019 confirms Mr Cummins view that it is more likely you suffer from depression rather than Bipolar Disorder. She considers that you meet the criteria for Substance use Disorder, predominantly methamphetamines.
62
I note from the report of Dr Saji Chathanchirayil, consultant psychiatrist, of
6 February 2017, that he had only a differential diagnosis of Bipolar Spectrum Disorder, that was not confirmed.
63 I accept the expressed opinions of Mr Cummins and Dr Chow when they say that the diagnosis of Bipolar disorder is not likely and that you suffer from major depression and substance use disorder, predominantly methylamphetamine.
64 Dr Chow acknowledges that you suffer from underlying personality vulnerabilities and from the information presented she has recommended that the presence of paedophilia may require further assessment.
65 In terms of the offending she considers that methamphetamines use may have contributed to you being more disinhibited. You were experiencing increased stress around your wife’s illness and increased resentment around your role being her carer.
66 Mr Maloney, whilst your personal circumstances and your mental health do context and an explanation for your offending it in no way excuses your offending and I consider that your moral culpability is high.
67 Dr Chow agrees with Mr Cummins that imprisonment may weigh more heavily upon you given that you will be removed from your professional and personal supports and that it may lead to a deterioration in your mental health. She states your depression may become worse and you may become more anxious whilst in prison and I have taken that into account.
68 Dr Chow is not trained in assessing risk of sexual reoffending. She stated in her opinion your mental health condition does not preclude you from participating in specialist sex offender treatment programs. You stated to her that you were willing to participate in such programs and that you were ashamed and embarrassed by your behaviour.
69 On your behalf I accept that you entered a plea of guilty at the earliest stage and that the plea has real utilitarian value. You have spared the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
70 The prosecution accepts the expressed conclusion from Mr Cummins’ report that there is a high probability that your mental health would deteriorate if incarcerated and also that your time in custody will be more difficult by reason of your mental health condition. I accept that limbs five and six of Verdins have been enlivened and your sentence has been discounted. That finding is consistent with Dr Chow’s assessment that I have earlier referred to.
71 Mr Fitzgerald did not rely on the other principles of Verdins but nonetheless submitted your condition was relevant to take into account, in so far as it gave proper context to your actions. Namely, that you were a person suffering from a major depression illness of moderate severity, you were having difficulties coping, you were using amphetamines and accessing pornography and I have had regard to that in formulating the appropriate sentence.
72 I also had regard to your early cooperation with the investigators at the time of the execution of the warrant and subsequent arrest. There was a real degree of candour on your behalf and your cooperation meant that they were provided with passwords and confirmation of the dates that you downloaded the material, and I have taken that into account.
73 I accept the plea of guilty is evidence of some remorse on your behalf and an acknowledgment by you that your conduct was wrong and that also is reflected in your discussions with both Mr Cummins and Dr Chow.
74 You are a person who has in the past made a contribution to the community through your hard work and care of your wife, and I have taken that into account.
75 The prior court appearance of relevance in 1995 is somewhat dated but nonetheless it relevant, because it involves inappropriate sexual offending on your behalf. You were placed on a without conviction adjournment that you adhered to. The circumstances involved you touching an infant of the vagina as described by Mr Fitzgerald.
76 Overall I consider that you have had an appropriate response to the offending. You are developing insight. It is important that you have indicated a willingness to participate in a sex offenders treatment program.
77 Overall I consider your prospects of rehabilitation are good, provided you complete such program.
78 You have been assessed as to your suitability to undertake specialised offender assessment and treatment and you have been found suitable for such a program, both in the community and also in prison.
79
I have had regard to the risk assessment performed by Kiri Tsalparos dated
14 May 2018 in the pre-sentence report. She states that you are
moderate-high risk category relative to other male offenders using the Static-99 and having regard to other tests she used to assess you. She states that you fall into the moderate-high risk category of reoffending.
80
She considers that your intimacy deficits, general antisocial attitudes, low self-esteem, lack of insight into your behaviour and its effect on victims and mental health predisposed you to sexual offending. You were an isolated individual. She raises the possibility of sexual deviance and arousal to children, but says this needs further exploration during treatment. That is consistent with what
Dr Chow says. She considers you are at risk of reoffending.
81 She did note that you do have the ongoing support of your mother and some social relationships that are considered to be positive and you will be provided by some emotional and practical support. She noted that you lack strategies to avoid any further access to child abuse material and that also continues to place you at risk.
82 Having regard to the extensive nature of her expressed opinion and the factors that she has highlighted, I prefer her expressed opinion, as being a better reflection of the overall risk of reoffending and I have had regard to her finding in preference to that of Mr Cummins.
83 Ms Tsalparos recommends group-based intervention through the Sexual Offenders Treatment Program (SOATS) and case management intervention in consultation with SOATS, that can be done either as in the community, through Community Corrections or through prison and would require supervision, monitoring and case management in consultation with SOATS.
84 Mr Fitzgerald sought on your behalf a sentence that did not involve an immediate term of imprisonment. He submitted that a Recognisance Release Order was appropriate on condition that you attend SOATS program in the community and any other drug and alcohol counselling programs recommended. A Recognisance Release Order, he submitted, would satisfy the need for deterrence and was adequate punishment.
85 The prosecutor submitted that the only available sentence was an immediate term of imprisonment to be served.
86 Overall, having regard to my assessment of the gravity of the offending and the large number of images and videos, and the content of such, I consider that a term of imprisonment to be served is warranted.
87
I had you assessed as to your suitability for a Community Correction Order and you were found suitable. But having given this matter proper consideration and having carefully considered all the material, and in particular, the
pre-sentence clinical assessment report and its findings, I consider that a term of imprisonment is the most appropriate punishment to reflect the seriousness of this offending. I recommend to the authorities that consideration be given for you to undertake a sexual offence specific treatment program whilst you are undergoing sentence.
88
I will now announce the formal court orders, so I ask that you stand please,
Mr Maloney.
89 Charge 1, using a carriage service to access child pornography material, you will be convicted and sentence to one year imprisonment. That is the Commonwealth charge, that is to start today, 13 August 2019.
90 Charge 2, possession of child abuse material, that is the state offence, you are convicted and sentenced to two years and six months' imprisonment and that is to start six months from the date of the commencement of the Commonwealth charge. Which means it is a total effective sentence of three years.
91 I fix a non-parole period in respect to the state offence of one year imprisonment.
92 I make the following declaration pursuant to s.6AAA, but for your plea of guilty would have imposed a term of imprisonment of 4 and a half years, to serve two and a half years.
93
Finally, Charges 1 and 2 on the indictment are Class 2 offences under the
Sex Offenders Registration Act2004 (Vic). On being found guilty of
Class 2 offences, you become a registrable offender and as a result you are required to comply with reporting obligations set out in that Act for a period of life.
94 I will now ask that your counsel, Mr Fitzgerald, accompanies my associate so that you can acknowledge receipt of a notice setting out all the relevant reporting obligations under that legislation, and that will conclude my sentence.
95 MR CROUCH: May it please the court.
96 MR FITZGERALD: Your Honour pleases.
97 HER HONOUR: Thank you. All right, so has that been prepared? All right. So that signed copy will be provided to you, Mr Fitzgerald.
98 MR FITZGERALD: Thank you, Your Honour.
99 HER HONOUR: We'll now adjourn, thank you.
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