Director of Public Prosecutions (Cth) v Ratten (a pseudonym)
[2017] VCC 1715
•17 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| TRISTAN RATTEN (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE C.J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2017 | |
DATE OF SENTENCE: | 17 November 2017 | |
CASE MAY BE CITED AS: | DPP (Cth) v Ratten (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1715 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Use carriage service to access child pornography – Use carriage service to make available child pornography material – Produce child pornography – Knowingly possess child pornography – Related summary offences – Use optical surveillance device to record visually a private activity to which you were not a party – Possess a prohibited weapon – Possess a silencer – Possess property reasonably suspected of being stolen or unlawfully obtained
Legislation Cited: Sentencing Act 1991 – Crimes Act 1958 – Criminal Code (Cth) 1995 – Sex Offender Registration Act 2004
Sentence: 3 years and 11 months imprisonment; Recognisance release order by way of $1000 for a period of 18 months after serving 19 months imprisonment; Forfeiture order; Sex offender registration for life; 31 days pre-sentence detention; Section 6AAA declaration: 6 years imprisonment with a non-parole period of 4 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr A. Albore | Solicitor for the Director of Public Prosecutions (Cth) |
| For the Accused | Mr C. Pearson (Plea) Ms K. Tucceri (Sentence) |
HIS HONOUR:
1 Tristan Ratten[1], on 17 October 2017 you appeared before me in respect to your plea in mitigation to an indictment containing four charges, being: use of a carriage service to access child pornography material, Charge 1; use a carriage service to make available child pornography material, Charge 2; produce child pornography material with the intention that the material be used in committing an offence under s.474.19 of the Criminal Code (Cth), Charge 3; and knowingly possess child pornography material contrary to s.70(1) of the Crimes Act 1958 (Vic), Charge 4.
[1] Tristan Ratten is a pseudonym.
2 In addition, you pleaded guilty to a number of related summary offences, being: Charge 5, using an optical surveillance device to record visually a private activity to which you were not a party; Charge 6, possessing a prohibited weapon; Charge 7, possess a prohibited weapon; Charge 9, possess a silencer; and Charge 10, that you did possess property reasonably suspected of being stolen or unlawfully obtained, namely a Sterling .22 calibre rifle.
3 The maximum penalty for Charges 1, 2 and 3 on the indictment is 15 years' imprisonment, while the maximum penalty for Charge 4 is ten years' imprisonment.
4 In respect of the summary offences, the maximum penalty in respect to Charges 5, 6, 7 and 9 is two years' imprisonment, while the maximum penalty for Charge 10 is 12 months' imprisonment.
5 Tendered as Exhibit A on the plea and read aloud in court was the prosecution opening for plea. In summary, on 22 May 2016 members of the Australian Federal Police identified an IP address assigned to you making child pornography material available on the "Shareaza" application. Shareaza is a peer-to-peer application that facilitates the sharing of files between devices on the internet.
6 Between 22 May 2016 and 8 September 2016, members of the Australian Federal Police directly connected to your device and downloaded files that were suspected to be child pornography. You used the username on the Shareaza application, "sumcunt". A total of 57 files were identified as child pornography.
7 On 30 September 2016, a warrant was executed at your home and police seized:
(a) a laptop computer;
(b) a hard drive;
(c) a black-coloured key fob covert camera;
(d) a Sterling brand .22 calibre rifle;
(e) two canisters of OC spray; and
(f) a firearm suppressor or silencer.
8 You were arrested and interviewed under caution. During the course of your record of interview, you made admissions in respect of your offending.
9 In respect to Charge 1, forensic analysis of your laptop revealed that you had installed the GigaTribe and Shareaza applications. Between 1 March 2013 and 21 September 2016, you had downloaded pictures and videos of material constituting child pornography. The total number of child pornography files accessed by you between 1 March 2013 and 21 September 2016 was 5739.
10 In respect to Charge 2, between 22 May 2016 and 8 September 2016, you made child pornography material available using the Shareaza application. Forensic analysis of your Shareaza application revealed a total of 1500 child pornography files in three folders named: "Collections", "New Porn" and "Torrents". The three folders were set on the status "Share". In your profile "sumcunt" the following message appeared:
"If you don't allow browsing and sharing, you will be banned wen you try to download from me. I have no problem sharing my files, but I wont allow leechers to download from me. SHARE YOUR FILES OR FUCK OFF."
11 Shareaza users were able to download files from your three folders which were set to "Share". As previously mentioned, members of the Australian Federal Police were able to successfully download 57 child pornography files from your IP address between 22 May 2016 and 8 September 2016. During the offending period, you had made a total of 1500 child pornography files available. The categories into which those files fell is set out in paragraph 16 of the Crown opening and I will not repeat it.
12 In respect of Charge 3, forensic analysis of your covert camera identified seven minutes and 59 seconds of video depicting two children showering naked in the bathroom of your residential address. The film was made on 28 May 2016 when you and your wife allowed your daughter to have friends over for a sleepover. You took the opportunity to film two little girls showering when naked.
13 Forensic analysis of your computer identified that when you operated under the name "Kelso78", on the GigaTribe application, you transmitted the covertly captured video of the girls showering to username "Body Paul". The video was transmitted on 29 May 2016. Set out at paragraph 30 of the prosecution opening is a "chat" conversation between yourself as Kelso78 and Body Paul. I will not set out that conversation, but it demonstrates the depths of your depravity.
14 In respect to Charge 4 on the indictment, forensic analysis of your laptop and hard drive identified that you were in possession of child pornography material in 9798 child pornography files. The categories into which that material fell are set out using the Categorisation Model for Child Exploitation Material ("CEM") at paragraph 32 of the Crown opening and I will not repeat it.
15 In respect to the summary offences, police analysed the covert camera that they seized from your home on 30 September 2016. Stored upon that device was film of a young adult female having a shower in the main bathroom of your home. During the course of your record of interview you admitted hiding the covert camera in a box and placing the box on the wash basin in the bathroom in order to take the video. You told police that you had an interest in voyeurism and had viewed the video on two or three occasions. The victim of this offence was related to you and was but 18 or 19 years of age.
16 In respect of this charge and Charge 3 on the indictment, your breach of trust in respect of each of the victims is profound.
17 Summary Charges 6 and 7 relate to the two canisters of capsicum spray that were seized by police on the date of the execution of the warrant at your home. Each of those canisters were forensically examined and were capable of discharging their contents.
18 Summary Charges 9 and 10 relate in turn to the silencer found at your premises as well as the barrel and receiver and bolt assembly of a .22 calibre Sterling brand rifle. At the time of your offending, you held a firearms licence and lawfully possessed several registered firearms. An analysis of the silencer by forensic officers of the Australian Federal Police revealed that the silencer was threaded and suitable to be attached to a .22 calibre rifle and was test fired and found to be operative.
19 The .22 calibre Sterling rifle was not registered in your name. The rifle assembly had gone missing from its registered owner's possession some time about 2013 or 2014 in circumstances that the owner was not able to explain. However, he had reported the firearm as missing to the Warrnambool Police.
20 You told the police on interview that you found the firearm near Green Lake near Horsham. You said you intended to get the firearm registered in your name but were afraid to bring the firearm to the police as you would be questioned about how it came into your possession.
21 Tendered as Exhibit B on the plea was the victim impact statement of the mother of one of the two children filmed by you showering at your home and subsequently published by you on the internet. In simple terms, the child's mother is devastated that such a thing could happen to her child. She suffers from anxiety when dropping her child off at school. She no longer permits her daughter to have sleepovers as she feels that her child is no longer safe. Her daughter was a friend of your daughter and this friendship had to be brought to an end. The fear that she experiences for her daughter causes her to lose sleep. She has lost her appetite. She feels stressed. Her anxiety affects her relationship with her husband. The thought of the video of her daughter and that it "is still out there" is always on her mind and scares her. In short, your actions you have destroyed the pleasures of motherhood that this woman once enjoyed in respect of her daughter.
22 Mr Ratten, you are 40 years of age and are prescribed Lexapro for depression. When seen by David Ball, psychologist, in July this year, you exhibited no evidence of frank mental illness. Mr Ball estimated your IQ to fall within the normal range (see Exhibit 1). You are the oldest of six brothers in what Mr Ball described as a blended family. Your mother and father separated when you were about five years of age, and she later re-partnered.
23 You were educated to Year 10 level. I was informed that you have always had stable employment, and that since 2013 have operated your own transport business.
24 You have lived in Queensland and Victoria, and have been a member of local State Emergency Service (SES) in both states. You have been a member of the local County Fire Authority (CFA) brigade for nine years. You are married, and have been so for 15 years. There are two children of your marriage aged 13 and ten years respectively.
25 As a result of the charges you do not live with your family but maintain a close relationship with them, and you are supported by your wife.
26 You told Mr Ball in relation to pornography:
“I turn to pornography when I get stressed. At the time I enjoyed it and that's why. Legal pornography has been a big part of my life. At first it excited me and I got hooked."
27 You told Mr Ball in respect to your introduction to child pornography that:
"It started when I was trying to download a kid's movie and some child porn sites were mislabelled. I looked at it and found it interesting."
28 You told Mr Ball that you accessed such material for a period of eight months. This statement is in stark contrast to the dates contained in Charge 1.
29 Mr Ball reported that you instructed him that in relation to the filming of children, you said you believed one of the victims to be eighteen at the time. You said:
“I found her attractive and filmed her in the shower. I filmed the three other nine and ten-year-olds that stayed over for my daughter's birthday for one night. I didn't set up to film them when they arrived. I just got the urge to do it."
30 You told Mr Ball that you later viewed the footage, and of course the sharing of that footage on the internet constitutes the facts that found Charge 3 on the indictment.
31 After being arrested you voluntarily sought treatment from Kim Dowse, psychologist (see Exhibit 1, report dated 27 September 2017). You attended 18 sessions in Melbourne, and travelled from Horsham to do so. At the commencement of therapy you had little or no insight into the harmful nature of your offending. However, over time you gained insight into your offending behaviour, and ultimately you came to the position that you are glad that you were caught.
32 Provided to the court were letters from yourself, your wife, and your mother (see Exhibit 1). You experience shame and embarrassment for your conduct. You demonstrate insight into your offending behaviour.
33 Your wife writes of the range of emotions that she went through once the nature of your offending became known to her. She is supportive of you and writes as to your treatment with Ms Dowse. She writes of your remorse and contrition, as well as your explanation for how the silencer, the subject of the summary offence, came into your possession.
34 Your mother writes in similar terms, and writes of the hardship that your family will suffer when you are imprisoned. Mr Pearson, of counsel, who appeared on your behalf, did not submit that this hardship was exceptional.
35 Returning to the reports of Mr Ball, you do not suffer from frank mental illness, personality disorder, mood disorder, or substance use disorder. Accordingly, you are an appropriate vehicle for the application of the sentencing principle of general deterrence.
36 You pleaded guilty at the earliest opportunity and are entitled to the benefit that flows to you from your plea; namely, that it is evidence of your remorse, which I accept, and that it has utilitarian benefit.
37 General deterrence is the paramount consideration in sentencing child pornography offenders. Your child pornography crimes were not victimless. Every child who appeared in the plethora of files in your possession is a victim. Having viewed a sample of the images and the analysis of the files in your possession, it is plain that the majority fell to the lower end of the CEM scale. However, there were images of small children being penetrated by adult males, and another performing a sexual act on an animal. In the main, the children's faces could be seen in the images. You held a large number of files. You shared files and chatted about shared files with another like-minded person. You accessed child pornography for years. Please stand.
38 Doing the best I can, taking into account the objective circumstances of your offending and your personal circumstances and applying sentencing principle, on the indictment I sentence you as follows:
39 On Charge 1, 24 months' imprisonment,
40 On Charge 2, 18 months' imprisonment,
41 On Charge 3, 18 months' imprisonment,
42 On Charge 4, 15 months' imprisonment.
43 In respect to the related summary offences I sentence you as follows:
44 On Charge 5, six months' imprisonment,
45 On Charge 6, one month's imprisonment,
46 On Charge 7, one month's imprisonment,
47 On Charge 9, six months' imprisonment,
48 On Charge 10, six months' imprisonment.
49 In respect to the sentence to be imposed on you for the State offences, I order that one month of each of the sentences imposed on the related summary offences Charges 5, 9 and 10 be served cumulatively upon each other and upon Charge 4 on the indictment. This results in a total effective sentence of 18 months' imprisonment, and I fix a non-parole period of 12 months' imprisonment.
50 In respect of the Commonwealth offences, I order that Charge 1 commence one month prior to the expiration of the State non-parole period. I order that Charge 2 commence twelve months after the commencement of Charge 1. I order that Charge 3 commence six months after the commencement of Charge 2. This results in a total effective sentence of three years' imprisonment and I order that you be released on a recognizance release order after serving 19 months' imprisonment and I fix a sum of $1000 as the recognizance. And I fix the period that you must be of good behaviour as a period of 18 months.
51 By this sentence, it is my intention that you serve a total effective sentence of three years and 11 months' imprisonment and that you be released after a period of two years and six months' imprisonment.
52 I declare that you have spent 31 days by way of pre-sentence detention.
53 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years.
54 I direct that it be entered in the records of the court that you were sentenced as a serious offender in respect to Charge 2 on the indictment.
55 I direct that you be subject to the provisions of the Sex Offenders Registration Act. Please be seated because there needs to be some rechecking. Just hold still.
56 We will do this by way of reference to paragraphs.
57 MR ALBORE: Yes. Foremost, Your Honour, just with respect to Your Honour's announcements as to being sentenced as a serious sex offender.
58 HIS HONOUR: Yes.
59 MR ALBORE: I heard Your Honour announce Mr Ratten be sentenced as a serious sex offender on Charge 2 - - -
60 HIS HONOUR: Four.
61 MR ALBORE: Charge 4. As Your Honour pleases.
62 HIS HONOUR: Now with respect to - - -
63 MR ALBORE: That is the first - - -
64 HIS HONOUR: We will return to Charge 4 to 9.
65 MR ALBORE: Yes, as Your Honour pleases.
66 HIS HONOUR: Now, just bear with me and you will see - - -
67 MR ALBORE: Yes.
68 HIS HONOUR: - - - that the total effective sentence is 18 months. You will see that the original non-parole period that I set is less than six months than the head sentence that is prohibited by statute.
69 MR ALBORE: Yes, if Your Honour pleases.
70 HIS HONOUR: So the non-parole periods have been reduced to 12 months. That then brings into the application the structure by which I brought about the Commonwealth sentence.
71 MR ALBORE: Yes.
72 HIS HONOUR: That is where we need to check things.
73 MR ALBORE: Well, Your Honour has brought forward the start date by one month so then on my calculations, just briefly, that it does not fit with Your Honour's total effective sentence that Your Honour intends to impose with respect to the minimum period to serve of two years and six months' imprisonment.
74 HIS HONOUR: Well, let us just deal with it in these terms.
75 MR ALBORE: Yes.
76 HIS HONOUR: By reference to paragraph 50.
77 MR ALBORE: Yes. By reference to paragraph 50 so - - -
78 HIS HONOUR: Just bear with me.
79 MR ALBORE: Yes.
80 HIS HONOUR: Charge 1, a period of 24 months is to commence one month prior to the expiration of the State non-parole period.
81 MR ALBORE: Yes.
82
HIS HONOUR: So it commences after the prisoner has been in custody for
11 months.
83 MR ALBORE: Yes.
84 HIS HONOUR: Charge 2 then commences 12 months after the commencement of Charge 1 which is an order for six months of cumulation on Charge 1. So it is 11 plus 24 plus six. And I order that Charge 3 commence six months after the commencement of Charge 2 which is 24 plus six, plus six; a total effective sentence of three years' imprisonment.
85 Now, the relevant point then becomes the recognizance release order.
86 MR ALBORE: Yes.
87 HIS HONOUR: And what do you say in respect of that?
88 MR ALBORE: Well, by way of Your Honour - first and foremost, Your Honour, referring to paragraph 49, by way of Your Honour bringing in the sentence back by - well, announcing a non-parole period of 12 months' imprisonment
89 HIS HONOUR: Yes.
90 MR ALBORE: - - - meaning that the - - -
91 HIS HONOUR: Commonwealth sentence - - -
92 MR ALBORE: - - - Commonwealth sentence will start - - -
93 HIS HONOUR: - - - commences a month earlier.
94 MR ALBORE: - - - one month earlier. So effectively the Commonwealth sentence will now start 11 months from now.
95 HIS HONOUR: Correct.
96 MR ALBORE: And then turning, Your Honour, to the total recognizance order that Your Honour has then announced.
97 HIS HONOUR: Yes.
98 MR ALBORE: That being 18 months.
99 HIS HONOUR: Yes.
100 MR ALBORE: Eighteen plus 11 being 29 months.
101 HIS HONOUR: It is two years and five months.
102 MR ALBORE: It is two years and five months so - - -
103 HIS HONOUR: Correct.
104 MR ALBORE: In my submission, Your Honour, it is - to give effect to Your Honour's intention to give a total effective sentence of four years with a period of two years and six months. In my respectful submission, Your Honour, it is open to Your Honour to make the recognizance release order for a period of 20 months.
105 HIS HONOUR: Yes.
106 MR ALBORE: Or, or an alternative to that, Your Honour, is for Your Honour to announce that the Commonwealth sentence commence upon expiration of the State non-parole period rather than - - -
107 HIS HONOUR: One month.
108 MR ALBORE: - - - taking Your Honour to paragraph 50, the leaving of Your Honour's reference to the commencement date being one month prior to the expiration. It is open to Your Honour to impose the commencement date upon the expiration of the State non-parole period. So there are two options for Your Honour to achieve Your Honour's total effective sentence.
109 HIS HONOUR: Well, I think in the circumstances that my orders will remain the same save that the paragraph - the non-parole period in respect to the State sentence must be six months less than head sentence. It must therefore be no less than - it cannot be - no greater than 12 months. So that will be the order.
110 MR ALBORE: Yes.
111 HIS HONOUR: And accordingly, I will reduce the effective non-parole period to two years and five months accordingly.
112 MR ALBORE: As Your Honour pleases.
113 HIS HONOUR: So would you please stand up?
114 Effectively, my order is this. That you will be sentenced - my intention is that the total effective sentence that you will receive is a sentence of four years' imprisonment and you will be released after serving two years and five months of that imprisonment. The period of time between your release and the expiration of the sentence is effectively held by way of suspension over you. And should you commit any offence that breaches that suspended sentence, then by operation of statute, that suspended sentence will be brought into operation.
115 Now, my associate will bring down to you documents that relate to the registration or your liability under the Sex Offenders Registration Act. Those documents are brought to you to sign as an acknowledgment that you have received them. That is what they are for. We will do that now. You have the recognizance of release order, do you?
116 MR ALBORE: Yes, I do, Your Honour.
117 HIS HONOUR: May I see that please?
118 MR ALBORE: Yes. And if it is convenient for Your Honour, I can also hand up to Your Honour a copy of the forfeiture order sought by the Crown. I understand it is not opposed.
119 HIS HONOUR: Thank you. My associate will also bring down to you the recognizance release order. I have signed the forfeiture order.
120 MR ALBORE: As Your Honour pleases.
121 HIS HONOUR: If everything works. Could you make copies of this order please for the Commonwealth Crown and for defence counsel?
122 ASSOCIATE: Yes, Your Honour.
123 HIS HONOUR: Are there any other matters?
124 MR ALBORE: No other matters.
125 MS TUCCERI: No, Your Honour.
126 HIS HONOUR: I would like to thank counsel for your assistance. Would you remove the prisoner please? Would you cut the link with the Horsham court please? I will stand down till the next matter is ready.
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